      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00445-CR
                                        NO. 03-13-00446-CR



                                     Stephen Hollar, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
    NOS. CR-12-0625 & CR-13-0100, HONORABLE JACK ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In two different indictments, Stephen Hollar was charged with assaulting his wife

Patricia Davis,1 whom Hollar was living with at the time of his arrest. See Tex. Penal Code § 22.01

(setting out elements of assault). Specifically, the first indictment alleged that Hollar “intentionally,

knowingly, and recklessly” caused bodily injury to “Davis by grabbing her ankle,” and the second

indictment alleged that he “intentionally, knowingly, and recklessly” caused bodily injury to “Davis

by pushing or throwing her.” Both indictments also alleged that Hollar had previously been

convicted of assaulting a member of his family. See id. § 22.01(b) (elevating offense of assault from

misdemeanor to third-degree felony if defendant has previously been convicted of assaulting person




        1
          Although Patricia Davis is sometimes referred to as Patricia Davis Hollar, the briefing,
indictments, and jury charges refer to Hollar’s wife as Patricia Davis. For that reason, we will also
refer to her as Patricia Davis or Davis.
“whose relationship to or association with the defendant is described by” Family Code). In addition,

both indictments contained an enhancement paragraph alleging that Hollar had previously been

convicted “of the felony offense of Assault Family Violence Repeat Offender.” Hollar pleaded true

to the enhancement allegation in both indictments. At the conclusion of the trial, the jury determined

that Hollar was guilty of both charges and sentenced Hollar to 20 years’ imprisonment for each

charge. See id. § 12.42 (elevating permissible punishment range for third-degree felony offense to

that of second-degree felony when “it is shown . . . that the defendant has” previously been convicted

of felony offense)2; see also id. § 12.33 (setting out permissible punishment ranges for second-degree

felony). Hollar appeals his conviction. We will affirm the district court’s judgments of conviction.


                                           DISCUSSION

                In two issues on appeal, Hollar challenges his convictions. First, he argues that his

trial attorney was ineffective. Next, he argues that the evidence is legally insufficient to support his

conviction under the second indictment, which alleged that he pushed or threw Davis. We will

address his sufficiency challenge first and then address his remaining issue.




       2
          We note that the provision of the Penal Code authorizing enhanced punishments for
repeat offenders has recently been amended by the legislature and that those amendments became
effective after Hollar’s conviction in this case. See Act of May 9, 2013, 83d Leg., R.S., ch. 161,
§§ 16.001-.003, sec. 12.42, 2013 Tex. Gen. Laws 622, 678; Act of May 23, 2013, 83d Leg., R.S.,
ch. 663, §§ 7-9, sec. 12.42, 2013 Tex. Gen. Laws 1751, 1753; Act of May 24, 2013, 83d Leg., R.S.,
ch. 1323, § 11, sec. 12.42, 2013 Tex. Gen. Laws 3506, 3512. However, because those amendments
do not substantively alter the effect that a prior felony conviction has on the permissible punishment
range for a third-degree felony offense, we refer to the current version of the statute. See Tex. Penal
Code § 12.42.

                                                   2
Legal Sufficiency

               As mentioned above, Hollar contends that the evidence was insufficient to support

his conviction for the assault charge alleging that he pushed or threw Davis. In challenging the

sufficiency of the evidence of this conviction, Hollar acknowledges that recordings of Davis from

the day of the alleged assault were played for the jury and that on the recordings Davis informed law-

enforcement personnel that Hollar had assaulted her and had thrown her across the room and onto

the coffee table; however, Hollar insists that no evidence was ever introduced establishing that Davis

ever complained of any “pain or injury.” In fact, Hollar contends that the only direct evidence of

pain came from a portion of one of the recordings in which Davis recounted that she experienced

pain when Hollar twisted her leg behind her, but Hollar insists that this evidence of pain was only

relevant to the other assault charge. Moreover, Hollar contends that, if anything, the evidence shows

that Davis did not experience pain because the coffee table, which broke when she landed on it,

“cushioned” her fall. Furthermore, although Hollar mentions Davis’s statements on the recordings,

he emphasizes that during her actual testimony, Davis testified that she had no recollection of the

events in question and that she did not believe that Hollar was responsible for her falling. Finally,

Hollar contends that the testimony from other witnesses corroborates Hollar’s testimony that he did

not cause Davis to fall. For these reasons, Hollar urges that the evidence was insufficient.

               An assault is defined under the Penal Code as “intentionally, knowingly, or

recklessly caus[ing] bodily injury to another.” Tex. Penal Code § 22.01(a)(1). Further, the Penal

Code broadly explains that “‘[b]odily injury’ means physical pain, illness, or any impairment of

physical condition.” Id. § 1.07(a)(8). “This definition encompasses even relatively minor physical



                                                  3
contact if it constitutes more than offensive touching.” Laster v. State, 275 S.W.3d 512, 524 (Tex.

Crim. App. 2009). Moreover, in order to prove that bodily injury occurred, there does not need to

be any testimony that the victim experienced pain; on the contrary, “the jury is permitted to draw

reasonable inferences from the evidence, including an inference that the victim suffered pain.”

Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.—El Paso 2002, no pet.). Stated differently, “[a]

fact finder may infer that a victim actually felt or suffered physical pain because people of common

intelligence understand pain and some of the natural causes of it.” Randolph v. State, 152 S.W.3d

764, 774 (Tex. App.—Dallas 2004, no pet.); see also Wawrykow v. State, 866 S.W.2d 96, 99 (Tex.

App.—Beaumont 1993, pet. ref’d) (explaining that “juries are free to use their common sense and

apply common knowledge, observation, and experience gained in the ordinary affairs of life when

giving effect to the inferences that may reasonably be drawn from the evidence”).

               Under a legal-sufficiency review, appellate courts view the evidence in the light

most favorable to the verdict and determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). When performing this review, an appellate court must keep in mind that it is the factfinder’s

responsibility to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable

inferences “from basic facts to ultimate facts.” Id. Moreover, an appellate court must “determine

whether the necessary inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,

16-17 (Tex. Crim. App. 2007). In addition, appellate courts should presume that any conflict among

the inferences was resolved in favor of the conviction and should defer to that resolution. Clayton



                                                 4
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Under a sufficiency review, appellate courts

consider all the evidence that the jury was allowed to consider regardless of whether the evidence

was rightfully or wrongly admitted. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim App. 2004).

                In his brief, Hollar correctly points out that during her testimony at trial, Davis related

that she did not want to testify in the proceedings and that she had filed an affidavit of non-

prosecution after Hollar was arrested. The affidavit was admitted as an exhibit. In the affidavit,

Davis averred that she has “difficulty with coordination” and that on the day of the alleged assault

she had “taken medication, been drinking alcohol and been up for 30 hours or more” and “fell

backwards over the coffee table and knocked” herself out. Further, Davis explained in her testimony

that she could not recall the events in question and repeated the assertions from her affidavit that she

had taken medication for vertigo and had been drinking. She also communicated that she was “not

confident that [Hollar] did this,” that she did not believe that Hollar “had anything to do with” her

falling, that she thought that she had fallen on her own, and that she had been to the emergency room

for falling since Hollar had been arrested.

                As mentioned above, during his defense, Hollar called witnesses who testified

that Davis had a history of falling down. First, Davis called Randall Reynolds who stated that he

observed Davis fall one time when she was outside and that on another occasion, he found Davis

lying on her driveway. In addition, Hollar called his daughter, Sarah Hollar, and her boyfriend,

Scott Sullivan, to testify. In their testimonies, Sarah and Sullivan related that Davis had difficulty

walking because she has poor balance. Furthermore, Sarah testified that Davis was not a credible

person, and Sullivan described Davis as delusional.



                                                    5
               Moreover, when testifying in his own defense, Hollar denied that he had assaulted

Davis. In fact, he explained that Davis caused her own injuries by knocking the coffee table over

when she jumped up for the phone.

               However, although Davis testified that she could not recall the events on the day

in question, recordings in which Davis stated that Hollar had assaulted her and described the

details of the assaults were played for the jury. See Moore v. State, 169 S.W.3d 467, 469 n.3 (Tex.

App.—Texarkana 2005, pet. ref’d) (explaining that it is not uncommon for victims of domestic

violence to refuse to cooperate with prosecution or to recant their accusations). The first recording

was of the 911 call that Davis made on the day in question, and the second recording was made by

Deputy Shawn Booth when he responded to the 911 call. In those recordings, Davis stated that

Hollar drank very heavily before the assault and that he gets aggressive when he drinks. Regarding

the events leading up to the assault at issue, she stated that he began verbally and physically

assaulting her in the morning, that he dumped the contents of an ashtray on her, and that he placed

his genitals near her face while uttering profane language. Moreover, Davis told Booth that Hollar

repeatedly pushed and shoved her for several hours, “knock[ed]” her around, twisted her leg behind

her, twisted her ankle, and threw her across the room and onto a coffee table, which caused

the coffee table to break into pieces. When discussing the contents of those recordings during her

testimony, Hollar stated that she would “[n]ot purposely” lie to a police officer and that she did not

sound intoxicated on the recordings.

               In addition to the recordings, Booth testified regarding his own observations on that

day. In his testimony, Booth testified that when he arrived, Davis was upset and that her ankle was



                                                  6
swollen. Further, Booth related that when he went in the house, he noticed a broken coffee table on

the floor. Moreover, Booth explained that someone falling on a coffee table would suffer injury as

well as pain. During Booth’s testimony, the State introduced photos of the scene, including photos

of the broken table.

               Finally, Hollar’s previous wife, Barbara Hollar, testified regarding abuse that she

suffered while married to him. Specifically, Barbara stated that during their marriage, Hollar was

physically and emotionally abusive, that he knocked her down some stairs while she was pregnant,

that he broke her nose twice, that he kicked her in the back, that he pulled her hair, that he burned

her with a frying pan, and that he tried to smother her. Further, she revealed that Hollar had

previously been convicted of assaulting her.

               In light of the evidence summarized above and given the inferences that could

reasonably be made from the evidence, including that Davis experienced pain, we cannot conclude

that the evidence was legally insufficient to support Hollar’s conviction under the terms of the

indictment alleging that Hollar assaulted Davis by pushing or throwing her. Accordingly, we

overrule Hollar’s second issue on appeal.


Ineffectiveness Claim

               As mentioned above, in his first issue, Hollar urges that his trial counsel provided

ineffective assistance of counsel during both the guilt and the punishment phases of the trial.3




       3
         After the conclusion of the trial, Hollar filed a motion for new trial in which he generally
alleged that his attorney provided him ineffective assistance of counsel; however, no hearing on the
motion for new trial was held.

                                                 7
Although he mentions other alleged deficiencies in the background section of his brief, his argument

section limits his challenges to the following 7 actions and inactions by his attorney:


       •       failure to object to the introduction of the recording made by Deputy Booth
               on the basis that it was testimonial in nature under Crawford v. Washington,
               541 U.S. 36 (2004);

       •       failure to object on hearsay grounds to the portions of Booth’s testimony in
               which he described the recording that he made of Davis;

       •       decision to ask Regina Burroughs, who was called to testify for Hollar, if she
               believed that Hollar was a violent person, which resulted in the introduction
               of evidence of Hollar’s extensive criminal history during her cross-
               examination;

       •       failure to ask for a hearing under Rule of Evidence 403 regarding the
               prejudicial value of Barbara’s testimony;

       •       failure to object to the State’s introduction of documents related to Hollar’s
               prior conviction for assaulting Barbara that showed facts pertaining to the
               prior offenses, probation violations, and extraneous offenses;

       •       failure to object during the punishment phase to the State’s introduction of
               22 booking sheets showing Hollar’s prior arrests because those booking
               sheets did not establish beyond a reasonable doubt that Hollar had been
               convicted of the prior bad acts; and

       •       failure to object to and to request a limiting instruction regarding the State’s
               repeated and improper references during the punishment phase to the effect
               that parole will have on Hollar’s sentence.


               For ineffectiveness claims, the defendant must overcome the strong presumption

that his trial “counsel’s conduct falls within the wide range of reasonable professional assistance.”

Strickland v. Washington, 466 U.S. 668, 689 (1984). To prevail on an ineffectiveness claim, the

defendant must show that the attorney’s “representation fell below an objective standard of



                                                  8
reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 688, 694. Decisions regarding effectiveness must be based on the totality of the representation.

Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d

816, 837 (Tex. App.—Austin 2013, pet. ref’d) (explaining that assessment of performance should

consider cumulative effect of counsel’s deficiencies). Moreover, although a defendant is not entitled

to representation that is without error, a single error can render the representation ineffective if it

“was egregious and had a seriously deleterious impact on the balance of the representation.”

Frangias, 392 S.W.3d at 653.

                Generally speaking, a direct appeal does not provide a useful way to present an

ineffectiveness claim because the record for that type of claim is usually undeveloped. Goodspeed

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “This is true with regard to the question

of deficient performance . . . where counsel’s reasons for failing to do something do not appear in

the record.” Id. (explaining that “counsel’s conduct is reviewed with great deference, without the

distorting effects of hindsight”). Moreover, before being deemed ineffective, trial attorneys should

be given the opportunity to clarify their actions. Id. When that opportunity has not been provided,

as in this case, an appellate court should not conclude that an attorney’s performance was ineffective

unless the challenged conduct is “so outrageous that no competent attorney would have engaged in

it.” See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

                Six of the seven alleged instances of ineffective representation stem from purported

failures to act on the part of Hollar’s trial attorney, and the record before this Court is not sufficiently



                                                     9
developed to allow us to evaluate those supposed failures to act because “[n]either [his] counsel nor

the State have been given an opportunity to respond to” the claims of ineffectiveness. Menefield v.

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Moreover, given the record before us, we

do not believe that those alleged failures were so outrageous that no competent attorney would

have committed them. Further, we note that although Hollar’s trial attorney did not object to the

admission of the recording made by Deputy Booth on testimonial grounds or to the testimony

discussing portions of the video, his counsel did object on the ground that “it doesn’t qualify as a

present sense impression because it is a narrative and it is audio of the victim of the crime

responding to questions asked by the police officers.” We also note that although Hollar contends

that his counsel failed to object to the 22 booking sheets, the record shows that his counsel did argue

in a hearing outside the presence of the jury that the sheets should not be admitted because they were

simply arrest records and did not show that Hollar was convicted of any crime. Regarding Hollar’s

assertion that his counsel failed to object to the State’s comments about the effect of parole and

failed to ask for a limiting instruction, the record shows when the State commented during its

closing that the amount of time served by Hollar will be significantly less than the sentence imposed

by the jury, Hollar’s counsel objected and explained that the State’s comment was an improper

argument. In addition, the record shows that although the district court initially overruled the

objection, it reconsidered Hollar’s counsel’s objection, sustained the objection, and instructed the

jury that it could “not consider how parole law and good conduct time could be applied.”

               Turning to Hollar’s remaining contention that his trial counsel provided ineffective

assistance through his decision to ask Burroughs if she believed that Hollar was a violent person, we



                                                  10
again note that the record does not clearly establish what Hollar’s counsel’s motivations were

when he asked Burroughs that question. Moreover, although Burroughs’s answer resulted in the

admission of evidence of Hollar’s prior criminal history, we note that Burroughs answered by

stating that Hollar was not violent, was caring, and was the “best person [she] could ever ask to

know,” and Hollar’s counsel might have concluded that the potential benefit of having an individual

who currently knows Hollar testify regarding her belief that Hollar was a peaceful person might

outweigh the potential negative consequences that could result. In light of the record before us, we

cannot conclude that Hollar’s counsel’s action was “so outrageous that no competent attorney

would have engaged in it.” See Garcia, 57 S.W.3d at 440.

               Even though it is unnecessary to address the issue further, we do note that “the

totality of the representation” provided by an attorney must be considered when assessing his

effectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). During voir dire,

Hollar’s attorney extensively questioned the jury panel regarding their ability to serve on the jury;

asked the panel if they could think of reasons why an alleged victim might falsely accuse someone

of a crime, about their prior interactions with law-enforcement personnel, and about the effect

that a defendant’s prior convictions might have on their decision making; and moved to strike

several panel members for cause. Further, the record also shows that Hollar’s counsel objected to

the admission of the recording of the 911 call on various grounds, objected to the admission of

the recording made by Deputy Booth, cross-examined the State’s witnesses, and called various

witnesses to testify on Hollar’s behalf. Moreover, during his closing argument, Hollar’s attorney

emphasized that Davis testified that Hollar did not assault her and that she did not remember the



                                                 11
events on the day in question, and his attorney also discussed how the State has the burden to prove

that Hollar was guilty and how even though there was evidence of Hollar’s prior misdeeds, the

jury should only find him guilty if they conclude that he was guilty of the offense actually charged.

               In light of the foregoing, we overrule Hollar’s first issue on appeal.4


                                         CONCLUSION

               Having overruled Hollar’s two issues on appeal, we affirm the district court’s

judgments of conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: August 14, 2014

Do Not Publish




       4
          In general, rejected claims made in a direct appeal are “not cognizable on habeas corpus.”
Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004). However, that prohibition does
not apply when an appellate court “rejects a claim of ineffective assistance of counsel because
the record on direct appeal does not contain sufficient information to adequately address and
resolve a particular allegation of counsel’s deficient performance,” and the claim may be considered
“in a later habeas corpus proceeding if he provides additional evidence to prove his claim.” Id.

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