                                                                                        ACCEPTED
                                                                                   01-14-00649-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                               2/9/2015 9:42:32 AM
                                                                              CHRISTOPHER PRINE
                                                                                            CLERK



               No. 01-14-00649-CR
                                                                FILED IN
                                                         1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                                         2/9/2015 9:42:32 AM
           IN THE FIRST COURT OF                A P P E ACHRISTOPHER
                                                          LS             A. PRINE
                                                                 Clerk
                      HOUSTON, TEXAS


                     JOHN ANDREW GARCIA,

                              Appellant,

                                  Vs.

                      THE STATE OF TEXAS,

                              Appellee.

                 Appeal from the 412th District Court
                      Brazoria County, Texas
                    Trial Court Cause No. 73555


BRIEF FOR THE APPELLEE, THE STATE OF TEXAS



                                           Trey D. Picard
                                           Assistant Criminal District Attorney
                                           State Bar No. 24027742
JERI YENNE – BRAZORIA COUNTY               111 East Locust St., Suite 408A
CRIMINAL DISTRICT ATTORNEY                 Angleton, Texas 77515
                                           (979) 864-1233
                                           (979) 864-1712 Fax
                                           treyp@brazoria-county.com

                                           Attorney for the Appellee,
Oral argument is not requested.            The State of Texas
             IDENTITY OF PARTIES AND COUNSEL


Appellant:                    John Andrew Garcia


Appellee:                     The State of Texas


Attorney for the Appellant:   Keith Allen
                              State Bar No. 01043550
                              Attorney at Law
                              2360 CR 94, Suite 106
                              Pearland, Texas 77584
                              (832) 230-0075
                              (832) 413-5896 Fax


Attorney for the Appellant    Bill Leathers
at Trial:                     State Bar No. 12095300
                              Attorney at Law
                              608 North Front St.
                              P.O. Box 1476
                              Angleton, Texas 77516
                              (979) 848-1700
                              (979) 864-3535 Fax


Attorneys for the Appellee    Jeri Yenne
on Appeal:                    State Bar No. 04240950
                              Criminal District Attorney
                              Trey D. Picard
                              State Bar No. 24027742
                              Assistant Criminal District Attorney
                              111 East Locust St., Suite 408A
                              Angleton, Texas 77515
                              (979) 864-1233
                              (979) 864-1712 Fax




                              ii
Attorneys for the Appellee   Jeri Yenne
at Trial:                    State Bar No. 04240950
                             Criminal District Attorney
                             Chase Clayton
                             State Bar No. 24072040
                             Assistant Criminal District Attorney
                             Kurt Sistrunk
                             State Bar No. 18444950
                             Assistant Criminal District Attorney
                             111 East Locust St., Suite 408A
                             Angleton, Texas 77515
                             (979) 864-1233
                             (979) 864-1712 Fax




                             iii
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS............................................................................... iv

INDEX OF AUTHORITIES ...........................................................................v

ABBREVIATIONS FOR RECORD REFERENCES ................................... vi

STATEMENT OF THE CASE .......................................................................1

ISSUES PRESENTED ....................................................................................2

STATEMENT OF FACTS ..............................................................................3

SUMMARY OF THE ARGUMENT ..............................................................5

ARGUMENT ...................................................................................................6

1)       The evidence supports the jury’s finding that the Appellant used
         a deadly weapon ....................................................................................6

2)       Appellant was not prevented from testifying during guilt-
         innocence by his attorney; neither is any prejudice resulting
         from his failure to testify shown in the record ................................... 10

CONCLUSION ............................................................................................. 15

PRAYER ....................................................................................................... 16

CERTIFICATE OF SERVICE ..................................................................... 17

CERTIFICATE OF RULE 9.4 COMPLIANCE .......................................... 18

APPENDIX ................................................................................................... 19




                                                       iv
                              INDEX OF AUTHORITIES

Cases

Brooks v. State,
             323 S.W.3d 893 (Tex. Crim. App. 2010)................................... 6

Bryant v. State,
             No. 01–12–00921–CR, 2013 WL 6506302
             (Tex.App.—Houston [1st Dist.], Dec. 10, 2013, no pet.)
             (mem.opinion) (not designated for publication) ........................ 8

Clayton v. State,
             235 S.W.3d 772 (Tex. Crim. App. 2007)................................... 7

Ex Parte Martinez,
           330 S.W.3d 891 (Tex.Crim.App.2011).................................... 11

Isassi v. State,
              330 S.W.3d 633 (Tex. Crim. App. 2010)............................... 6, 9

Jackson v. Virginia,
            443 U.S. 307 (1979) ................................................................... 6

Jarnagin v. State,
             No. 01–09–00753–CR, 2010 WL 5186782
             (Tex.App.—Houston [1st Dist.], Dec. 23, 2010
             (mem.opinion) (not designated for publication) ........................ 9

Johnson v. State,
            169 S.W.3d 223 (Tex.Crim.App.2005),
            cert. denied 546 U.S. 1181 (2006) ........................................... 10

Jones v. State,
             944 S.W.2d 642 (Tex.Crim.App.1996)...................................... 9

Laster v. State,
             275 S.W.3d 512 (Tex.Crim.App.2009)...................................... 8




                                                 v
Mills v. State,
              No. 01–11–00068–CR, 2012 WL 524450
              (Tex.App.—Houston [1st Dist.] Feb. 16, 2012, no pet.)
              (mem.opinon) (not designated for publication) ....................... 11

Mitchell v. State,
             68 S.W.3d 640 (Tex.Crim.App.2002)...................................... 11

Morales v. State,
            633 S.W.2d 866 (Tex.Crim.App.1982)...................................... 8

Perez v. State,
             310 S.W.3d 890 (Tex.Crim.App.2010).................................... 10

Robertson v. State,
            163 S.W.3d 730 (Tex.Crim.App.2005)...................................... 7

Strickland v. Washington,
             466 U.S. 668 (1984) ........................................................... 10, 11

Tong v. State,
             25 S.W.3d 707 (Tex.Crim.App.2000)...................................... 11

Tucker v. State,
             274 S.W.3d 688 (Tex.Crim.App.2008)...................................... 8

Yebra v. State,
             No. 07-10-00008-CR, 2010 WL 3893684
             (Tex.App.—Amarillo, Oct. 5, 2010, pet ref’d.)
             (mem. opinion) (not designated for publication) ....................... 8


Statutes

TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (Vernon 2011) .............................. 7

TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011) ............................... 1, 7




                                                vi
       ABBREVIATIONS FOR RECORD REFERENCES

    Abbreviation                   The Record

1     RR 2:532         Reporter’s Record, vol. 2, page 532.

2      CR 1:45           Clerk’s Record, vol. 1, page 45.

3     Ant. Br. 5             Appellant’s brief, page 5.

4     Apx. Ex. 1           State’s appendix, Exhibit 1.

5     RR 5: Sx. 1   Reporter’s Record, vol. 5, State’s Exhibit 1




                           vii
                      STATEMENT OF THE CASE

             A jury convicted the Appellant, John Garcia, of aggravated

assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2)

(Vernon 2011). Jury also assessed the Appellant’s punishment at

confinement for ten years. Trial occurred in the 412 th District Court for

Brazoria County, Texas, Hon. Ed Denman presiding. In two issues on

appeal, the Appellant argues the evidence is insufficient to support his

conviction and he received ineffective assistance of counsel during trial.




                                     1
                           ISSUES PRESENTED

             At issue is whether there is sufficient evidence the Appellant

used a deadly weapon when he assaulted the complainant. The Court is also

asked to decide whether the Appellant received ineffective assistance of

counsel because his trial attorney allegedly prohibited him from testifying

during the guilt-innocence phase of trial.




                                      2
                        STATEMENT OF FACTS

             The instant matter involved the complainant, Rene Arredondo,

and the Appellant and arose from a dispute over money owed by Rene to

another individual named Timothy “Tim” McKeel for labor performed

previously building a fence (RR 3:23, 3:151). Rene testified he paid Tim $75

but still owed him an additional $25 (RR 3:23). On June 13, 2013, Tim

approached Rene who was, at that moment, scrapping a vehicle with his

brother to earn the additional $25 needed to pay the Appellant (RR 3:23-24).

Rene told Tim he would have the rest of the money due once the scrap was

sold, which would take about 45 minutes (RR 3:25). Tim initially agreed but

returned a short time later (RR 3:25).

             The Appellant joined Tim at the scene and an argument ensued

between the Appellant and the complainant’s brother (RR 3:26-28).

Gradually more people filtered into the location as the argument became

louder and the confrontation escalated (RR 3:28). Rene then decided to

return home with his wife who witnessed the confrontation escalate (RR

3:32-33). At that moment, Rene was hit from behind with a hard, metal

object that landed on the right side of his face and knocked him unconscious

(RR 3:33-34, 3:37, 3:40-41). Rene’s wife, who was standing beside him




                                     3
with her back turned to the Appellant, testified the impact was very loud,

solid and did not sound like the impact from a fist (RR 3:87).

             Rene later testified he thought the Appellant was the one who

delivered the blow because he was the only one standing behind him (RR

3:37, 3:72). Rene’s wife, who also testified the Appellant was the only

person standing behind them when the blow was delivered, then helped

Rene away from the scene as a fight erupted between Rene’s brother against

Tim and the Appellant (RR 3:39-40, 3:88-89). The police arrived a short

time later and Rene identified the Appellant as the one who assaulted him

(RR 3:41-42). Rene told the officers he had been hit with “a piece of metal,”

and the officers recovered a metal wrench on the ground nearby (RR 3:42,

3:72, 3:109, 8: Sx. 4). One of the responding officers later testified that Rene

did in fact appear to have been struck by a blunt object verses an assailant’s

fist (RR 3:129-30). Rene was then taken by ambulance to the hospital where

he was treated for a fractured jaw and broken teeth (RR 3:44-45). The

Appellant would later threaten to kill Rene if he testified at trial (RR 3:56).




                                      4
                   SUMMARY OF THE ARGUMENT

             There is no dispute the Appellant struck Rene Arredondo

during an argument over money—he only argues there is no evidence he

used a weapon. The nature and severity of the complainant’s wounds,

however, provide sufficient evidence the Appellant struck him with a blunt

metal object, not a closed fist. Further, an investigating officer testified the

complainant’s wounds were consistent with being hit with the kind of

weapon alleged in the indictment. The jury was also free to disbelieve

testimony supporting the Appellant’s version of events. Thus, the evidence

is sufficient to support the jury’s finding the Appellant used a deadly

weapon during the assault.

             In addition, the Appellant failed to show that his trial counsel

prevented him from testifying during the guilt-innocence phase of trial over

his insistence to do so. The record shows defense counsel told the Appellant

he had a right to testify, but recommended he not take the stand. The

Appellant also fails to show the result of trial would have been any different,

had he decided to testify against his attorney’s advice. Accordingly, his

ineffective assistance of counsel claim should be overruled.




                                      5
                               ARGUMENT

      1)     The evidence supports the jury’s finding that the Appellant
             used a deadly weapon.

             In his first issue on appeal, the Appellant contends that the

evidence was legally and factually insufficient to support his conviction—

specifically, that he used a deadly weapon in the course of the assault. A

court of appeals reviews a sufficiency of the evidence issue, regardless of

whether it is denominated as a legal or factual claim, under the standard of

review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Under the Jackson

standard, the court reviews all of the evidence in the light most favorable to

the verdict and determines whether, based on that evidence and any

reasonable inferences from it, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson, 443

U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

             In conducting a sufficiency review, a reviewing court defers to

the jury’s role as the sole judge of the credibility of the witnesses and the

weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This

standard accounts for the fact finder’s duty to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235


                                     6
S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports

conflicting inferences, a court of appeals presumes that the fact finder

resolved the conflicts in favor of the prosecution and defer to that

determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

            A person commits the offense of aggravated assault if he uses

or exhibits a deadly weapon during the commission of an assault. TEX.

PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011). What constitutes a “deadly

weapon” is determined by section 1.07 of the Texas Penal Code. Robertson

v. State, 163 S.W.3d 730, 732 (Tex.Crim.App.2005). In the context of this

appeal, a deadly weapon includes 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). “Serious bodily injury”

means bodily injury that creates a substantial risk of death or that causes

death, serious permanent disfigurement, or protracted loss or impairment of

the function of any bodily member or organ. Id. § 1.07(a)(46). Here, there is

no dispute the Appellant assaulted the complainant; rather, he argues only

that the evidence is insufficient to show he used a deadly weapon.

            The indictment alleged the Appellant used a deadly weapon to

assault the complainant, namely a “wrench or hard metal object” (CR 1:5).

To prove the Appellant’s use of a deadly weapon, the State is not required to



                                     7
introduce the object into evidence. Yebra v. State, No. 07-10-00008-CR,

2010 WL 3893684 *3 (Tex.App.—Amarillo, Oct. 5, 2010, pet ref’d.) (mem.

opinion) (not designated for publication) (citing Morales v. State, 633

S.W.2d 866 (Tex.Crim.App.1982)). Even without a description of the

weapon, the victim’s injuries can, by themselves, be a sufficient basis for

inferring that an appellant used a deadly weapon. See id. (citing Tucker v.

State, 274 S.W.3d 688, 691-92 (Tex.Crim.App.2008) and Morales, 633

S.W.2d at 868-69); see also Bryant v. State, No. 01–12–00921–CR, 2013

WL 6506302 *3 (Tex.App.—Houston [1st Dist.], Dec. 10, 2013, no pet.)

(mem.opinion) (not designated for publication) (holding same).

            Based on the evidence presented of the nature and severity of

Rene’s injuries, including a cracked jaw and shattered teeth, the jury could

have reasonably found the Appellant used a deadly weapon (RR 3:41-45,

3:57-58, RR 8: Sx. 1-3). Further, the absence of direct evidence specifically

identifying or describing the metal tool introduced into evidence as State’s

Exhibit “4” does not render the foregoing evidence of a deadly weapon so

weak that the verdict is either clearly wrong or manifestly unjust. See Laster

v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009). There was also ample

evidence at trial that the wrench recovered at the scene and admitted as

State’s Exhibit “4” could be used as a deadly weapon (RR 3:113, 3:138, RR



                                     8
8: Sx. 4). In addition, testimony from the investigating officer that the

complainant’s wounds were consistent with being hit by a wrench or metal

object further support the jury’s deadly weapon finding (RR 3:129-30). E.g.,

Jarnagin v. State, No. 01–09–00753–CR, 2010 WL 5186782 *4

(Tex.App.—Houston [1st Dist.], Dec. 23, 2010 (mem.opinion) (not

designated for publication) (officer testified that complainant’s injuries and

bruising were consistent with being struck by a bat or club).

             Further, the jury heard the testimony of the complainant and his

wife who said, given the blow and resulting injuries received, they believed

the Appellant used a deadly weapon, in this case a blunt metal object. To be

sure, the jury also heard testimony from Tim McKeel, who said the

Appellant hit the complainant with a fist, but nothing else (RR 3:154-55).

However, it is not the province of an appellate court to evaluate the

credibility of witnesses and substitute its’ own judgment for that of the jury,

which is the sole judge of the weight and credibility given to witness

testimony. Isassi, 330 S.W.3d at 638; Jones v. State, 944 S.W.2d 642, 648

(Tex.Crim.App.1996). Because the physical evidence and witness testimony

supporting the Appellant’s use of deadly weapon is sufficient, his first issue

on appeal should be overruled.




                                     9
       2)    The Appellant was not prevented from testifying during
             guilt-innocence by his attorney; neither is any prejudice
             resulting from his failure to testify shown in the record.

             In his second issue, the Appellant argues his defense attorney

was ineffective because counsel prevented the Appellant from testifying

during the guilt-innocence phase of trial. In order to determine whether

Appellant’s trial counsel was ineffective, a reviewing court must determine

(1) whether the Appellant has shown that his counsel’s representation fell

below an objective standard of reasonableness and, if so, (2) whether there is

a reasonable probability that the result of the proceeding would have been

different but for his attorney’s errors. Strickland v. Washington, 466 U.S.

668,   687    (1984);   Johnson      v.    State,    169   S.W.3d   223,   235

(Tex.Crim.App.2005), cert. denied 546 U.S. 1181 (2006) (Strickland

provides the appropriate framework for addressing an allegation that the

defendant’s right to testify was denied by defense counsel.). Failure to meet

either prong of the Strickland test will defeat a claim of ineffective

assistance   of   counsel.   Perez    v.    State,   310   S.W.3d   890,   893

(Tex.Crim.App.2010).

             Under the Strickland standard, “reasonable probability” means

a probability sufficient to undermine confidence in the outcome of the trial.

Strickland, 466 U.S. at 694; Mitchell v. State, 68 S.W.3d 640, 642



                                      10
(Tex.Crim.App.2002). This requires showing “a reasonable probability that,

absent the errors, the fact finder would have had a reasonable doubt

respecting guilt,” not merely “that the errors had some conceivable effect on

the outcome of the proceeding.” Ex Parte Martinez, 330 S.W.3d 891, 901

(Tex.Crim.App.2011). An appellate court’s determination as to whether a

defense attorney’s actions “so compromised the proper functioning of the

adversarial process that the trial court cannot be said to have produced a

reliable result” is made by our review of the overall record. See id.; see also

Mills v. State, No. 01–11–00068–CR, 2012 WL 524450 *2 (Tex.App.—

Houston [1st Dist.] Feb. 16, 2012, no pet.) (mem.opinon) (not designated for

publication).

                In its review of defense counsel’s conduct in this proceeding

the Court of Appeals is required to indulge a strong presumption that his

conduct fell within a wide range of reasonable professional assistance.

Further, the Appellant must overcome the presumption the challenged

actions could be considered sound trial strategy. See Strickland, 466 U.S. at

689; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Here, the trial

record fails to demonstrate that defense counsel’s performance fell below an

objective standard of reasonableness—specifically, that his recommendation




                                      11
the Appellant not testify during guilt-innocence was not based on sound trial

strategy.

             The Appellant filed a motion for new trial in which he argued

defense counsel prohibited him from testifying during guilt-innocence

against his desire to do so. During the motion for new trial, the Appellant’s

trial attorney testified he informed the Appellant he had “an absolute

constitutional right to testify” but it was counsel’s opinion that he should

not, given the Appellant’s prior criminal history (RR 7:17). Counsel further

testified they discussed this issue before the close of the State’s case, and the

Appellant accepted his advice and chose not to testify (RR 7:17, 7:19-20).

Had the Appellant chosen to testify against his attorney’s advice, trial

counsel said he would have made a record in court reflecting the Appellant’s

decision (RR 7:17-18).

             Further, testimony offered by the Appellant during his motion

for new trial shows that anything he said during the guilt-innocence phase of

trial would have likely reinforced the prosecution’s case. Specifically, during

cross examination, the following exchange occurred:

      STATE:              Mr. Garcia, if you had testified not to the
                          punishment but at the guilt/innocence you
                          say you would have told the jury the truth,
                          right?

      APPELLANT:          Yes, sir.


                                      12
      STATE:             Okay. And you would have told them that
                         you didn’t hit Rene Arredondo with a pipe,
                         right?

      APPELLANT:         Yes.

      STATE:             You would have told him -- in fact, you
                         would have told them that you didn’t hit him
                         with anything other than your hand, right?

      APPELLANT:         Yes, sir.

      STATE:             Okay. You told them that in the punishment
                         phase, didn’t you?

      APPELLANT:         I don’t recall, honestly.

      STATE:             But Mr. Leathers did call Timothy McKeel,
                         right?

      APPELLANT:         Yes, sir.

      STATE:             Okay. And Timothy McKeel testified to the
                         jury essentially what you would have said,
                         which is that you did not hit Rene
                         Arredondo with anything other than your
                         hand, right?

      APPELLANT:         Yes, he did.

(RR 7:11).

             Based on the record, the Appellant has not shown his defense

attorney denied him the opportunity to testify during any portion of the

instant proceeding. The Appellant further fails to rebut the presumption that

trial counsel’s decision not to call him to testify during guilt-innocence was



                                     13
based on sound trial strategy. Finally, the Appellant has not shown that there

is a reasonable probability that the result of the guilt-innocence phase of trial

would have been any different had the Appellant testified about the events

surrounding the offense. Accordingly, his second issue on appeal should be

overruled.




                                      14
                              CONCLUSION

            There is sufficient evidence in the record supporting the jury’s

finding that the Appellant used a deadly weapon (in this case a wrench or

some other blunt metal object) when the Appellant struck Rene Arredondo

from behind, cracked his jaw and sent him to the hospital. The Court of

Appeals should defer to the jury’s determination on the Appellant’s use of a

deadly weapon and overrule his first issue on appeal. Further, the Appellant

was not prevented from testifying during guilt-innocence by his attorney.

There is also no evidence in the record that the result of the guilt-innocence

phase of trial would have been different had the Appellant testified against

his lawyer’s advice. Accordingly, his second issue on appeal should be

overruled as well.




                                     15
                              PRAYER

            For these reasons, the State asks the Court of Appeals to

overrule the Appellant’s issues on appeal and affirm the trial court’s

judgment.



                           Respectfully submitted,


                           /s/ Jeri Yenne
                           _____________________________________
                           Jeri Yenne
                           State Bar No. 04240950
                           Brazoria County Criminal District Attorney


                           /s/ Trey D. Picard
                           _____________________________________
                           Trey D. Picard
                           State Bar No. 24027742
                           Assistant Criminal District Attorney


                           111 East Locust St., Suite 408A
                           Angleton, Texas 77515
                           (979) 864-1233
                           (979) 864-1712 Fax
                           treyp@brazoria-county.com

                           ATTORNEY FOR THE APPELLEE,
                           THE STATE OF TEXAS




                                 16
                       CERTIFICATE OF SERVICE

             As required by Texas Rule of Appellate Procedure 6.3 and

9.5(b), (d), (e), I certify that I have served this document on all other parties,

which are listed below, on February 9, 2015:


      Keith Allen                           By:
      State Bar No. 01043550                         personal delivery
      Attorney at Law
      2360 CR 94, Suite 106                          mail
      Pearland, Texas 77584                          commercial delivery service
      (832) 230-0075
                                                     electronic delivery / fax
      (832) 413-5896 Fax
      Keith@KGAllenLaw.com

      Attorney for the Appellant


                                         /s/ Trey D. Picard
                                         _____________________________
                                         Trey D. Picard
                                         Assistant Criminal District Attorney




                                       17
             CERTIFICATE OF RULE 9.4 COMPLIANCE

            I certify that this electronically filed document complies with

Rule 9.4 of the Texas Rules of Appellate Procedure and that the number of

words is: 3,483.


                                     /s/ Trey D. Picard
                                     _____________________________
                                     Trey D. Picard
                                     Assistant Criminal District Attorney




                                   18
                  APPENDIX

No documents are attached.




                      19
