                                 NO. 07-99-0248-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                               OCTOBER 5, 2001
                        ______________________________

                             STEVEN DEWAYNE EVANS,

                                                      Appellant

                                           v.

                               THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                NO. 38,589-B; HON. SAMUEL C. KISER, PRESIDING
                       _______________________________

Before QUINN, REAVIS AND JOHNSON, J.J.

      Steven Dewayne Evans (appellant) appeals his conviction for murder. His three

points of error concern a purported denial of his Sixth Amendment right to confront his

accuser, the legal and factual sufficiency of the evidence, and the effectiveness of his

counsel. We affirm.

                                     Background

      On October 25, 1999, a party was held at Independence Hall in Amarillo, Texas.

Between 200 to 300 people attended same. During the event, an argument erupted
between Keith Austin (Austin) and the mother of his two children, Shannon Hicks (Hicks).

The cause of the argument was Hicks’ dancing with appellant’s brother, Bernard, with

whom she also had a child. In short, Austin was jealous. Thereafter, appellant’s sister,

Brenda, approached and exchanged words with Austin. Following this, appellant and

Austin themselves “had words,” which words escalated into a physical altercation between

the two. Security personnel intervened and escorted the combatants to the parking lot.

       A number of people were present in the parking lot at the time. Furthermore,

Austin’s friend, Edward, wanted to go over and confront appellant. Austin advised him

against it and went back inside the dance hall to retrieve his jacket. Moments passed

before multiple gunshots were heard coming from the parking area in front of the Hall. The

police were notified. Upon their arrival, more gunfire was heard. Investigation then

revealed that Edward had been shot. He later died at the scene.

       The State indicted appellant for murder. A jury of his peers convicted him of the

accusation.

                           Issue One: Confrontation Clause

       Appellant initially argues that the trial court denied him his Sixth Amendment right

to confront his accuser. This allegedly occurred when he attempted to impeach the State’s

sole eyewitness, Artrail Tillmon, via a “prior conviction.” According to the record, Tillmon

had been indicted for intentionally and knowingly threatening a female with bodily injury

by use of a deadly weapon. Upon his plea of guilty, the adjudication of his guilt was

deferred. Moreover, the status of the prosecution remained the same at the time Tillmon




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was called to testify against appellant.1 Appellant told the court below that he “want[ed]

to use this prior conviction to impeach [Tillmon], especially since he’s got [sic] on the stand

now and portrayed himself as a prison officer, and an officer.” So too did appellant allege

that he had “a right to use this, since [Tillmon] got a criminal offense to impeach him with.”

The trial court disagreed and prevented him from using the “conviction” because it neither

involved a felony nor a crime of moral turpitude. We overrule the issue.

        As evinced by the circumstances described above, appellant sought to utilize the

“prior conviction” to generally impeach Tillmon’s credibility via Texas Rule of Evidence

609.2 Furthermore, the trial court undoubtedly construed the effort as such because it

concluded that the evidence did not comply with Rule 609. Nowhere did appellant mention

his constitutional right to confront his accusers. Nor did he endeavor to gain admittance

of the evidence (despite Rule 609) by arguing that it purportedly evinced a vulnerable

relationship between Tillmon and the State and, therefore, constituted evidence of bias of

interest.3


        1
          Given that appellant was granted deferred adjudication, the supposed conviction was not one. That
is, because he had been granted deferred adjudication, he had not been convicted of the offense. So, the
characterization of the charge as a “prior conviction” was inaccurate. However, we use that moniker here
for the sake to clarity.
        2
         The rule states that “for purposes of attacking the credibility of a witness,” a litigant may tender
evidence that the witness had been “convicted of a crime . . . if elicited from the witness or established by
public record but only if the crime was a felony or involved moral turpitude . . . .” TEX. R. EVID . 609(a).
        3
         The phrase “vulnerable relationship” was coined in Carroll v. State, 916 S.W.2d 494 (Tex. Crim.
App. 1996) and describes a circumstance wherein the witness may be prone to color testimony in favor of
the State in return for leniency viz a pending criminal prosecution. Moreover, if such a circumstance exists,
evidence of same is admissible even though it does not involve a final conviction. Maxwell v. State, 48
S.W.3d 196, 199-200 (Tex. Crim. App. 2001). Finally, as noted in Maxwell and Moreno v. State, 22 S.W.3d
482 (Tex. Crim. App. 1999), evidence that would not be admissible under Rule 609 because the conviction
was neither final, a felony, nor one of moral turpitude could be admissible if it illustrated the requisite
vulnerable relationship. Given this, it is incumbent upon one attempting to gain the admission of evidence
inadmissible under Rule 609 to invoke the vulnerable relationship theory in a manner reasonably informing

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Instead, his ground was limited to admission via Rule 609 and for the purposes

contemplated by that rule.

        Yet, on appeal, appellant argues that the trial court erred because the evidence was

admissible to show bias or interest despite Rule 609. In other words, appellant attempts

to invoke the vulnerable relationship theory before us without having mentioned it below.

Having failed to mention it below as a ground supporting admission of the evidence, he

waived it for appellate purposes. TEX . R. APP . P. 33.1(a); Broxton v. State, 909 S.W. 2d

912, 918 (Tex. Crim. App. 1995) (holding that the grounds supporting an objection uttered

below must comport with the grounds asserted on appeal).

                            Issue Two: Insufficiency of the Evidence

         In his second point of error, appellant alleges that the jury’s verdict lacked legally

and factually sufficient evidentiary support. We disagree and overrule the point.

        Standard of Review

        Rather than reiterate the well-settled standards of review applicable to claims of

legal and factual insufficiency, we cite the litigants to Jackson v. Virginia, 443 U.S. 307, 99

S. Ct. 2781, 61 L. Ed.2d 560 (1979); King v. State, 29 S.W.3d 556 (Tex. Crim. App.2000);

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.1996); and Moreno v. State, 755 S.W.2d

866, 867 (Tex. Crim. App.1988) for explanations of same.

        Application of Standard

        Below, Tillmon testified that he saw appellant hold a revolver sideways, point same

at Edward, and shoot. Furthermore, Edward died of gun shot wounds. This constitutes


the trial court of his reliance upon that theory.

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some evidence upon which a rational jury could conclude beyond a reasonable doubt that

appellant intentionally and knowingly caused the death of Edward by shooting him with a

deadly weapon, as charged in the indictment. Thus, legally sufficient evidence existed to

support the jury’s verdict of guilty.

       That the evidence of guilt was not free of contradiction and that the credibility of

witnesses may have been subject to question does not require us to conclude that the

verdict was factually insupportable. Those circumstances merely resurrected issues for

the jury to resolve. And, based upon our review of the entire record, we cannot say that

the verdict was clearly wrong or manifestly unjust.

                    Issue Three: Ineffective Assistance of Counsel

       Finally, appellant alleges that his trial counsel was ineffective because counsel

failed to 1) make an offer of proof sufficient to satisfy the predicate for admitting the “prior

conviction” discussed under the first issue and 2) object to the State’s final argument

during the guilt-innocence phase.

       Standard of Review

   The standard of review applicable to claims of ineffective counsel is well-settled and

adequately explained in Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), cert.

denied, __U.S.__, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), Thompson v. State, 9 S.W.3d

808 (Tex. Crim. App. 1999), Beck v. State, 976 S.W.2d 265, 266 (Tex.App.--Amarillo 1998,

pet. ref'd), and Rodriguez v. State, 955 S.W.2d 171, 176-77 (Tex. App.–Amarillo 1997, no

pet.). We need not reiterate it.




                                               5
       Application of Standard

       Proper Predicate

       At the time of trial, precedent existed holding that evidence of a deferred

adjudication was not admissible to show vulnerability to State influence as a possible bias

or motive to lie. Hoyos v. State, 951 S.W.2d 503, 508 (Tex. App.–Houston [14th Dist.]

1997), aff’d 982 S.W.2d 419 (Tex. Crim. App. 1998) quoting, Jones v. State, 843 S.W.2d

487 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1035 (1993). This precedent was not

nullified until the rendition of Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001) in

June of 2001, some two years after trial below. Given this, we cannot fault trial counsel

for omitting to assert a legal argument which contradicted authority existing at the time of

trial. See Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996). At the very least,

counsel’s omission may have been based on reasonable trial tactic, i.e. the desire to

eschew invoking untenable legal argument and thereby alienating both the court and jury.

       No Objection to Closing Argument

       During its closing argument in the guilt / innocence phase of the trial, the

prosecution stated:

              I will tell you the truth. Without any equivocation, without even one
              ounce of waiting, I will tell you, you believe Artrail Tillmon. If you
              don’t you vote not guilty and you can set this murderer back on the
              streets.

This comment purportedly evinced an attempt by the prosecutor (through his own unsworn

testimony) to bolster the credibility of Tillmon. As such it was allegedly objectionable, and




                                             6
because trial counsel did not object, he was ineffective, according to appellant. We

disagree.

       First, assuming the comment was objectionable, we note that the decision to object

to particular statements uttered during closing argument is frequently a matter of legitimate

trial strategy. Hubbard v. State, 770 S.W.2d 31, 45 (Tex. App.–Dallas 1989, writ ref’d).

Thus, evidence of counsel’s strategy, if any, is crucial to determining whether he was

ineffective.    Furthermore, nothing of record indicates why counsel at bar withheld

objection.     Without such an explanation, we cannot say that the record before us

sufficiently rebuts the strong presumption that counsel exercised reasonable professional

judgment. Thompson v. State, 9 S.W.3d at 808; Beck v. State, supra.

       Second, and again assuming the comment was objectionable, nowhere does

appellant attempt to illustrate “there [was] a reasonable probability that, but for counsel’s

[one supposed] unprofessional error[], the result of the proceeding would have been

different.” Tong v. State, 25 S.W.3d at 712. Nor, after reviewing the entire record, can we

say that such a probability existed.

       Accordingly, we affirm the judgment of the trial court.



                                                                 Per Curiam




Publish.




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