                                    NO. 07-04-0119-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL E

                                   DECEMBER 15, 2005

                           ______________________________


                    TROY MONTGOMERY EISENMAN, APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

             FROM THE 84th DISTRICT COURT OF OCHILTREE COUNTY;

                    NO. 3784; HON. WILLIAM D. SMITH, PRESIDING

                          _______________________________

Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1

                                          OPINION

       In two points of error, appellant Troy Montgomery Eisenman seeks reversal of his

conviction of aggravated assault with a deadly weapon upon David Eisenman, as well as

the resulting judge-assessed punishment of ten years confinement in the Institutional

Division of the Department of Criminal Justice. In those points, appellant argues that his

trial counsel was ineffective in that: 1) he failed to properly investigate the case and present

       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2005).
a viable defense, and 2) he failed to resolve the conflict that existed because his trial

counsel had previously represented the victim in this case. We affirm the judgment of the

trial court.

        The nature of appellant’s ineffective assistance of counsel claim requires us to

review the trial testimony in some detail. The state’s first witness was Jamie Risewig. Ms.

Risewig testified that she had lived with appellant about nine months at the time of her

testimony. At the time of the offense, on January 22, 2003, she had just moved in with

appellant. She averred that twice that day, the victim David Eisenman (David) had been

over to appellant’s residence, once in the morning and once in the late evening. She said

that she, David, and appellant had been drinking heavily that day and were all intoxicated.

        That evening, when David came to appellant’s residence, appellant admitted David

to the house and gave him a beer. Initially, she said, the pair talked for awhile in the living

room and were getting along “so-so.” She went in the kitchen, and while she was in there

heard a loud argument. She came out of the kitchen and, she said, as she did so, she saw

David bending over and appellant with a bat in his hand. She opined that appellant had hit

David although she admitted she did not actually see him do so. When asked by the

prosecutor if she had not in the past told the investigating officer that she had been in the

bathroom and, when she came out, she saw appellant hit David with the baseball bat, she

denied it. However, a videotape of a statement she made to the investigating officer was

shown.

        After the videotape was shown, Ms. Risewig admitted that she had told the

investigating officer as she came out of the bathroom, she had seen appellant hit David one

time, and that David was then on his knees and bleeding from his head. She also said that

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“to her knowledge” appellant had struck David with the bat before she came out. She did

not see David with any weapon.

        Under cross-examination by defense counsel, she said she had seen David three

times the day of the occurrence. The first time was in the morning when he was so drunk

that he passed out on the couch. She averred that David was belligerent, rude, and

cussing that morning. In the afternoon, she and appellant saw David at his aunt’s house

and, she said, he was drunker than he had been that morning, and he was still cussing and

being belligerent and rude. David told them that he had been drinking about three or four

days.

        Catina Brock testified that she was David’s girlfriend.           On the night of the

occurrence, she said, she went to appellant’s residence looking for David. As she

approached the front door of the residence, she heard “yelling and like breaking and

things.” Seeing that the front door was partially open, she entered the house. As she did

so, she saw David on his knees bleeding from his head. There was blood on the floor and

David was covered in blood. She saw appellant with a baseball bat and, she averred, “Troy

drew back, hit David on the head and it grounged [sic] down and hit him on the shoulder.”

She averred that she saw appellant hit David several times with the bat and then, he

started “hitting things. . . [c]offee table, anything in the house. “ Brock told appellant that if

he would calm down, she would get David out of the house. Appellant did so, and Brock,

with the assistance of Ronnie Eisenman, removed David from the house.

        Upon cross-examination, Brock said that David had been at her house before he

went over to appellant’s house. When she went to appellant’s house, she noticed that he

too was drunk. She recollected a prior occasion when the police had to be called because

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David was drunk.     However, that was over a year before.         She also said that the

relationship between David and appellant was good when they were sober.

        David took the stand and testified that he was appellant’s cousin and had worked

for him once before. He acknowledged that their relationship might be characterized as

“fighting cousins” and their disagreements included both verbal and physical confrontations.

Although he admitted passing out at appellant’s house, he averred that incident occurred

the day before the occurrence giving rise to this prosecution. On the day in question, he

said he went over to appellant’s house three times. The first time, he averred, was to

socialize and to ask about a job, and appellant offered him a job. He had not been drinking

at that time. David admitted that he drank too much and on a regular basis. David also

admitted that he had “violated the law quite a bit growing up” and that at the time of his

testimony, he was in jail awaiting transportation to the Department of Criminal Justice and

had been confined there before.

        The second time he went to appellant’s house on the day in question was in mid-

afternoon and was again to see about a job. He admitted that he had had over a six-pack

of beer by that time and that he and appellant got along fine then. He left there and went

over to his aunt’s house. At that time, he was drunk and “maybe” obnoxious. He and the

others there were all drunk and were “cussing some” but there were no physical

confrontations. He was at that place about an hour or an hour and a half and then went

home.

        While he was at home, he received a call from another individual which caused him

to change his mind about going to work for appellant. He continued to drink until later that

evening when he returned to appellant’s house. At that time, he, appellant, and Ms.

                                             4
Risewig were all drunk. Appellant offered him a beer and David told him that he had been

offered another job and he was going to take that job instead of the one appellant had

offered him. Then, he said, appellant “just blew up,” and accused him of not taking the job

because of his girlfriend’s influence. He and appellant were so close to each other during

that exchange that appellant’s saliva was hitting him in the face.

       David averred that appellant then used an expletive, got his baseball bat from

another room, used another expletive in telling David to get out of his house, started

swinging the bat and hit David on the arm twice and on the head. After that last blow,

David did not remember anything until he awoke in an Amarillo hospital. David denied that

he ever had a weapon during the occurrence or that he ever attempted to strike appellant.

He admitted that he had pushed appellant when appellant spit on him and that was when

appellant got the bat.

       Under cross-examination, David admitted that he had been drinking for at least two

days prior to the occurrence and that he had consumed around 36 beers during that time.

He acknowledged that at the time of the alleged assault, he had been on a three-day

drinking binge. In describing the incident to the defense attorney, David asserted that

appellant got mad about David not going to work for him. After appellant did so, he said

the pair was face-to-face, almost chest-to-chest. David said “when Troy [appellant] went

to slobbering on me, I jarred him back.” As he did so, he said, appellant went back a step

which irritated him. Appellant then went into his plant room, grabbed the bat, and “that’s

when all the altercation started.” He averred that the incident was caused by both of them

being intoxicated and the fact that he was not going to work for appellant. He said there

was no bad blood between the two prior to the altercation and that after the incident and

                                             5
he got out of the hospital, he went back to work for appellant or took his place on a job. As

a result of the encounter, he said he still had some back problems and some impairment

of hearing.

       Dr. Claude Betty, a physician, testified about David’s injuries and that in the manner

of the use of the bat, it was capable of causing death or serious bodily injury. Perryton

police sergeant Mike Smith testified that he was the officer who first responded to the call

concerning the occurrence. He went to appellant’s house and observed that he was “highly

intoxicated” as was Ms. Risewig. The officer went to appellant’s residence and talked to

appellant “less than four minutes” after which he took Ms. Risewig to his patrol car to talk

to her away from appellant and did so for some eight minutes. Ms. Risewig never told him

that David broke into the house or had threatened appellant although David was “running

his mouth.”

        Smith then returned to appellant’s residence to talk to appellant but he was passed

out in front of the house’s fireplace. He attempted to rouse appellant but was unsuccessful.

The officer said that when he initially talked to appellant he was “very excited, very mad.”

Appellant never said that David broke into his house, threatened him, or struck him.

Appellant also told the officer something to the effect that he was glad that David was in an

ambulance and that he may have had something to do with it and that if David didn’t “die

tonight, I’m going to find him and that’s it.” Upon cross-examination, the officer said that

appellant’s comments were “probably some of his intoxication, some of his anger.” He said

that appellant was belligerent with him at times when he talked to him. After Smith’s

testimony, the State rested.



                                             6
       As his first witness, appellant called his cousin, Greg Eisenman (Greg). Greg

testified that the day before the incident giving rise to this prosecution, David came to his

business drinking a quart of beer and being loud. When Greg told David he could not drink

in his business, David argued with him. Greg averred that David and appellant had had

fights their whole lives. They would fight and then make up. Greg said that David had been

drinking, loud, and obnoxious Greg’s whole life since David was old enough to drink.

       Appellant’s second witness was his mother, Mary Eisenman (Mary), who was also

David’s aunt. She testified that on the day of the incident in question, David came to her

house drunk and in possession of alcoholic beverages. When she told him to get the

alcohol out of her house, David argued with her. David also started bragging about how

he had killed a “snitch” which upset her. Eventually, appellant, who was also present at the

time, told David to leave the house. She opined that David was intoxicated, belligerent, and

very rude as he always was when he was drinking. Mary also remembered a time when

David broke into appellant’s house and assaulted him. She said that every time that David

was around he caused trouble for “whoever was there.”

       Ronnie Eisenman (Ronnie), appellant’s brother, was his next witness. David came

to his house on the day of the assault just as he was leaving to go to Mary’s house. Ronnie

knew that David had been drinking and did not want David to go with him to Mary’s house

because it upset Mary when David had been drinking. However, when David promised to

be quiet, Ronnie let David go with him. After they arrived, violating his promise to be quiet,

David, drunk that day as well as the preceding day, loudly bragged that he had killed a

“snitch” and would kill another, and it wouldn’t bother him at all. Ronnie admitted that he



                                              7
was on probation for a felony DWI offense himself. He left Mary’s house with David and

took him to a place “where they get drugs.”

       When Ronnie saw David later that night, David was even more intoxicated. David

told Ronnie that he was going over to appellant’s house. Ronnie said that he told David

not to go over to appellant’s house because there would be trouble if he did so. Later that

night, David came back to Ronnie’s house all bloody, and asked why appellant would do

“that.” Ronnie drove David and his girlfriend to the hospital. Ronnie also averred that

David broke into appellant’s house about two years ago and assaulted appellant. After

David got out of the hospital, he came back over to appellant’s house and helped him build

a fence as if nothing had happened. It was Ronnie’s opinion that on the day of the

occurrence that David just kept getting drunker and he “was doing alcohol and drugs, so

like he knew he was going to prison and he was partying up before he got put in jail.”

       When cross-examined by the State, Ronnie said that Dr. Betty did not want to look

at any member of the Eisenman family because “my mother had sued Dr. Betty” although

he did not know what injuries Dr. Betty had testified to. He admitted that all the members

of the family, including himself, were heavy drinkers. Under re-direct examination by

appellant’s counsel, Ronnie estimated that David had been intoxicated at least 60 per cent

of the time.

       Appellant’s mother was recalled by appellant and testified about another time David

had come to appellant’s house and assaulted appellant. She requested that David leave

appellant’s house but David refused to do so and it was necessary to call the police to

remove him. Appellant also recalled Jamie Risewig who testified that appellant was trying



                                              8
to get David to leave his house at the time of the incident and that David was drunk and

verbally abusive to both her and appellant.

       The litany of axiomatic guidelines to be followed in the determination of ineffective

assistance of counsel claims as well as the authorities mandating those guidelines are set

out in the seminal case of Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001), cert.

denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003). As explicated in that

case, the Sixth Amendment to the Federal Constitution guarantees the right to reasonably

effective assistance of counsel in state criminal prosecutions. In general, to obtain a

reversal of a conviction on the ground of ineffective assistance of counsel, an appellant

must demonstrate that: 1) defense counsel’s performance fell below an objective standard

of reasonableness, and 2) there is a reasonable probability that but for counsel’s error(s),

the result of the proceeding would have been different. Id. at 440. In assessing a claim of

ineffective assistance, an appellate court must indulge a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance, that is, the

appellant must overcome the presumption that under the circumstances, the challenged

action might be considered sound trial strategy. Id. Also, in the absence of evidence of

counsel’s reasons for the challenged conduct, an appellate court commonly will assume

a strategic motivation if any can possibly be imagined and it will not conclude the

challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it.              Id.   Finally, an

appellant’s failure to satisfy one prong of the twofold test negates a court’s need to consider

the other prong. Id.



                                              9
       Counsel may be ineffective when operating under a conflict of interest. Barbaro v.

State, 115 S.W.3d 799, 801 (Tex. App.–Amarillo 2003, pet. ref’d). However, until the

accused shows his attorney is, or was, actively representing such interests, and that actual

conflict of interest adversely affected counsel’s performance, he has not established the

predicate for a claim of ineffective assistance. Id.; Nethery v. State, 29 S.W.3d 178, 188

(Tex. App. –Dallas 2000, pet. ref’d). Additionally, the conflict must be actual, as opposed

to speculative or potential. James v. State, 763 S.W.2d 776, 781-82 (Tex. Crim. App.

1989); Thompson v. State, 94 S.W.3d 11, 16 (Tex. App.–Houston [14th Dist.] 2002, pet.

ref’d). An actual conflict of interest exists if counsel is required to make a choice between

advancing his client’s interest in a fair trial or advancing other interests (including his own),

to the detriment of his client’s interest. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim.

App. 1997). Moreover, in the absence of some showing that a potential conflict of interest

became an actual conflict of interest, a reviewing court will not speculate about a strategy

an attorney might have pursued but for the existence of the potential conflict of interest.

Routier v. State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1040,

124 S.Ct. 2157, 158 L.Ed.2d 728 (2004). Parenthetically, the test for ineffective assistance

of counsel is the same under both the federal and state constitutions. Hernandez v. State,

726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986).

        The gist of appellant’s first point challenge is that his trial attorney was ineffective

because he failed to discover and call to testify as witnesses Alvino and Cristina Quintana

and Tonya McNeeley, whom he characterizes as neutral witnesses. He argues that they

would have provided additional evidence of David’s drunken and abusive behavior towards



                                               10
appellant and others and this would have bolstered appellant’s self-defense claim. The

Quintanas were neighbors of appellant and Tonya McNeeley was a local tavern owner.

      At the new trial hearing, the trial judge took judicial notice of the affidavits of these

witnesses. In their affidavits, the Quintanas averred that they were appellant’s neighbors.

They said that David would knock on appellant’s door at all hours of the day and night and

would become abusive if appellant would not answer the door. At other times, David would

drive by appellant’s house and cuss and scream. They also said that David was always

drunk and causing problems for appellant. Alvino said that, in his opinion, appellant had

just gotten to the point that he could not take David’s behavior towards him anymore. Both

the Quintanas said they had not been contacted about testifying, and Alvino said he would

have been willing to do so.

       At the hearing, the trial court also considered the affidavit of Ted Campos, a private

investigator. In the affidavit, Campos averred that he had talked to Tonya McNeeley, who

was the manager of Our Place Bar in Perryton. She told the investigator that David had

a reputation for being a troublemaker and brawler to the extent that she had banned him

from her bar. She also told Campos that David and his girlfriend had been kicked out of

her bar for fighting with each other and that they were later arrested at their home.

       Appellant also testified at the new trial hearing. He said that he had reviewed the

affidavits of the Quintanas and had been unaware of what they knew. He also said that he

had made his trial attorney aware of specific instances in which David had attacked him

and others and told the attorney of David’s reputation in the community. Appellant

understood that his trial attorney had also represented David in another matter and that he

had told the attorney this concerned him but that the attorney told him that was no problem.

                                             11
Although appellant said that he did not believe that this was brought up at trial, under cross-

examination, he admitted that his mother and his two brothers had testified at trial about

various incidents and as to David’s character for being aggressive and obnoxious when

drunk.

         At the hearing, the State produced the affidavit of appellant’s trial attorney. In that

affidavit, the attorney said the prosecutor told the jury that David had an extensive criminal

record, that David was obnoxious, aggressive, and violent when drunk, and that on the

night of the incident, David was drunk. He also produced evidence to that effect during the

trial, and we have listed some of that evidence above. The attorney states in the affidavit

his conclusion that the relationship between David and appellant was fully developed at the

trial and additional evidence of David’s character traits or propensity for violence would

have been merely cumulative and corroborative.

         Our review of the extensive evidence produced at the trial concerning David’s

drinking habits and his activities while he was drinking convinces us that the trial court was

justified in concluding that the additional evidence was cumulative in nature and that it

would not likely have produced a different result had it been produced at trial. Trial

counsel’s performance in that regard did not fall below an objective standard of

reasonableness. Appellant’s first point is overruled.

         In connection with appellant’s conflict of interest point, the record does not show that

the trial court reversibly erred in its evident conclusion that no actual conflict of interest

existed that adversely affected trial counsel’s performance at trial or his ability to properly

defend appellant. Appellant’s second point is overruled.



                                                12
       In sum, both of appellant’s points of error are overruled, and the judgment of the trial

court is affirmed.


                                                   John T. Boyd
                                                   Senior Justice

Do not publish.




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