A jury convicted appellant of capital murder and the trial court sentenced him to death pursuant to the jury's answers to the special issues at the punishment phase. Appellant raises eleven points of error in an automatic direct appeal to this Court. We affirm.
STATEMENT OF FACTS
Appellant was convicted of murdering the victim during the course of committing or attempting to commit robbery or burglary. The victim was an elderly man in poor health who often hired local men, including appellant, to assist him with household chores. The victim was known to carry large amounts of cash. The victim was murdered in his bedroom. His death was caused by at least sixteen blows to the head with a claw hammer. Most, if not all of these blows, occurred while the victim was lying in bed. The crime scene revealed no evidence of a struggle. Appellant told a couple of acquaintances that he went to the victim's home to get money and, while there, hit the victim with a hammer.
In his confession to the police, appellant stated that he went to the victim's home to get money from the victim. After knocking on the door and receiving no answer, appellant entered the victim's home and found him in his bedroom. Appellant stated that the victim attacked him and hit him "upside the head" with some unidentified object. Appellant grabbed a claw hammer, which he claimed was on the victim's bed, and hit the victim once with it. Appellant did not remember striking the victim fifteen other times with the claw hammer. Appellant took the victim's wallet and money that was on the victim's bedside table.
SUFFICIENCY OF THE EVIDENCE AT GUILT OR INNOCENCE
In appellant's first point of error, he contends that the evidence is legally insufficient to show that he committed murder during the course of robbing the victim or during the course of burglarizing the victim's home. In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
The evidence showed that appellant entered the victim's home without permission and stole money from him after hitting the victim with a claw hammer, causing his death. This evidence supports the State's theories that appellant murdered the victim during the course of burglarizing the victim's home or during the course of robbing the victim. See generally Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Cr.App. 1991), cert. denied, 504 U.S. 958 (1992). Appellant's first point of error is overruled.
In appellant's second point of error, he alleges the evidence is factually insufficient to support the jury's verdict of guilt. In a factual sufficiency review, this Court views all the evidence without the prism of "in the light most favorable to the prosecution" to determine if the verdict is so weak as to be clearly wrong and manifestly unjust or if the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000). On this record, we cannot conclude that the jury's verdict is clearly wrong and manifestly unjust or that it is against the great weight and preponderance of the evidence. Appellant's second point of error is overruled.
SUFFICIENCY OF THE EVIDENCE AT PUNISHMENT
In appellant's eleventh point of error, he alleges the evidence is legally insufficient to support the jury's finding that he would be a continuing threat to society. In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. See Jackson, 443 U.S. 307; Allridge v. State, 850 S.W.2d 471 (Tex.Cr.App. 1991), cert. denied, 510 U.S. 831 (1993).
At punishment, the State presented evidence that appellant was previously convicted of attempted murder. Appellant locked the victim of that offense in the trunk of a car with his feet and hands bound. Appellant then rolled the car into a lake, leaving the victim inside the trunk to drown. The victim survived because the car lodged on a large rock and did not sink. The State also presented evidence that appellant assaulted a man in front of his child, assaulted a former girlfriend, and, while incarcerated, unlawfully possessed weapons.
The facts of the instant case and appellant's history permit a rational juror to conclude that appellant would continue to be a threat to society. Accordingly, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson, 443 U.S. 307; Allridge, 850 S.W.2d 471. Appellant's eleventh point of error is overruled.
In appellant's third and fourth points of error, he claims that the trial court erred by overruling his hearsay objections to the testimony of Sharon Wooley (point three) and James Thomas (point four). Wooley testified that, several days before the victim's murder, she saw bruises on the victim's arms. Wooley also testified that the victim told her that he was afraid of appellant.
Q. Mrs. Wooley, I just want to ask you a couple more questions. You indicated earlier in your testimony that you had spent the Monday prior to [the victim's] death, he spent most of that day with you, correct?
Q. And that's when you noticed the bruising on his arms?
Q. At that time, did he indicate to you how he felt or any feelings towards [appellant]?
A. He told me he was scared of him.
Q. He was scared of him?
Our review of the record indicates that appellant objected only to that portion of Wooley's testimony about the victim's out-of-court statement to her about being afraid of appellant. Appellant claimed, among other things, that this testimony was hearsay and that it was irrelevant and "if relevant, that it's [sic] probative value [was] far outweighed by the prejudicial value."
Our objection would be, Number 1, that the statement is hearsay, that it's [sic] not in compliance with Article 3836 [sic] Code of Criminal Procedures in that that particular procedural rules goes specifically to the mind of the accused at the time of the offense. We also say, because of the testimony and the relationship of the parties established in this case, more specifically, the only witnesses that have testified have said that the parties were drinking and bumming around the day prior to the killing. There's been no evidence established that there's been any bad relationship between the accused and the deceased. Therefore, as the case stands now, we would say that the statement is not relevant under 401 and 402; and if relevant, that it's probative value is far outweighed by the prejudicial value. That's not to say that it may not become relevant at a later date if we were to offer evidence of a good relationship between the parties, but we have not done that; and if this is admissible, it can only be admissible in a rebuttal situation. That would be it.
Following Wooley's testimony, Thomas testified that, several days before the victim's murder, he saw bruises on the victim. Thomas also testified that the victim told him that he was afraid of appellant. Appellant made "the same objection as earlier." The record further reflects that Thomas also blurted out a nonresponsive answer that the victim told Thomas that appellant beat the victim up. The trial court denied appellant's motion for mistrial after instructing the jury to disregard Thomas' nonresponsive answer.
Q. Okay. Did you notice anything about [the victims'] appearance?
A. It looked like he was badly beaten and bruised up and whelps [sic] all over him.
Q. Did he have any bruising in the arm area?
A. Yes, both arms looked like somebody took his hands and squeezed him real hard.
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Q. When you were speaking to [the victim] that day did he indicate if he had any feelings in regards to [appellant]?
[APPELLANT]: We have the same objection as earlier, Your Honor.
[TRIAL COURT]: Is this going to be pretty much the same type thing.
[PROSECUTION]: Yes, sir.
A. Yes, he said he had beat him up.
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[APPELLANT]: We object to the last question and answer as being hearsay, as previously discussed.
[TRIAL COURT]: Sustained.
[APPELLANT]: We ask that the jury be instructed to disregard the witness' last answer to the question.
[TRIAL COURT]: The jury is so instructed to disregard the last answer given by this witness.
[APPELLANT]: And because we believe that an instruction at this point in time would not cure the defect or harm that it's caused, we request a mistrial.
[TRIAL COURT]: Request for mistrial is denied.
Q. Mr. Thomas, did [the victim] indicate how he felt about [appellant]?
Q. What did he indicate to you that he felt about [appellant]?
A. That he was scared of him.
Q. Now, later that evening, did you have an opportunity, as you were returning to your home, to see the [victim]?
A. Yes, ma'am.
[APPELLANT]: Before we go any further, just again, with regard to the last question and answer, we renew our objection previously made.
[THE COURT]: Same ruling, and your objection is denied.
Appellant concedes on appeal that the victim's out-of-court statements to Wooley and Thomas about being afraid of appellant were properly admitted into evidence on the issue of the victim's consent to appellant's entry into his home. See Anderson v. State, 15 S.W.3d 177, 184-85 (Tex.App.-Texarkana 2000, no pet.). Appellant does not appear to argue that the "bruise" testimony standing alone was inadmissible to rebut appellant's self-defense claim because the "bruise"testimony tended to show that the victim did not receive these bruises in a struggle with appellant shortly before appellant killed him.
Appellant contends, instead, that the "fear" testimony closely followed by the "bruise" testimony was "a clever method used by the prosecutor" to get into evidence through the "backdoor" inadmissible hearsay testimony to the effect that appellant had previously beat the victim up. Cf. Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Cr.App. 1989) (party may not circumvent hearsay rule through artful questioning designed to elicit hearsay indirectly); Head v. State, 4 S.W.3d 258, 264 (Tex.Cr.App. 1999) (Womack, J., concurring). Appellant claims that the prosecutor "cleverly" left the jury with this "clear picture" without having to "ask the question outright." Appellant further claims that Thomas' testimony was even more harmful than Wooley's "because if the jury had any doubt of the State's intentions in offering the 'bruise testimony', these doubts were dispelled by Thomas blurting out the fact that [the victim] told Thomas that Appellant had 'beat him up.'"
Appellant claims that the admission of this "backdoor" hearsay was non-constitutional error that affected a "substantial right" because it had "a substantial and injurious effect or influence in determining the jury's verdict." Appellant claims that the erroneous admission of this "backdoor" hearsay "served to undermine [his] claim that [the victim] was the first aggressor-that he struck Appellant 'upside the head' with an object before Appellant reacted to defend himself." Appellant further contends that "the jury may well have believed that if Appellant had assaulted [the victim] in the days leading to the homicide, that he acted in conformity with past conduct" when he murdered the victim. Appellant further claims that the erroneously admitted "backdoor" hearsay "bolstered a weak theory that the homicide occurred in the course of a burglary" and that it also "enhanced the State's robbery theory."
We understand appellant's complaint to be that what amounts to hearsay evidence that appellant previously had beat the victim up was improperly admitted. Assuming that appellant preserved this claim and assuming that the record supports it, we decide that any error in admitting this evidence was harmless and did not have "a substantial and injurious effect or influence in determining the jury's verdict" in light of the overwhelming evidence contradicting appellant's self-defense claim.
To the extent that appellant is arguing that the jury may have convicted him because he was acting "in conformity with past conduct" when he murdered the victim, it also does not appear that he made that objection at trial. Appellant's third and fourth points of error are overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant claims in his fifth point of error that trial counsel was ineffective for failing to preserve error of the indirect hearsay offered through the testimony of Wooley and Thomas. Appellant claims that counsel was ineffective for failing to object specifically "to the testimony that the [victim] was bruised and appeared 'badly beaten'" several days before the victim's death. Appellant also argues that trial counsel was ineffective "for failing to timely object to the testimony of [Thomas] that the [victim] told him that he was afraid of appellant." Because the record is silent on the motives behind counsel's actions, appellant cannot overcome the strong presumption of reasonable professional assistance. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App. 2001). Appellant's fifth point of error is overruled.
In his seventh, eighth, and ninth points of error, appellant contends he received ineffective assistance of counsel because counsel failed to object to the testimony of Andre Fordeson, Andrew Black, and Larry White. Fordeson and Black testified that the day before the victim's murder, appellant asked if they wanted to steal guns from the victim's house. White testified that on the same day, appellant asked if he wanted to purchase a gun that was "hot." White testified further that he had heard appellant was known to steal. Appellant claims the testimony of Fordeson, Black, and White was inadmissible because it was not relevant.
In order to prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). He must show that counsel's performance was deficient and that he was prejudiced by counsel's deficient performance. In order to demonstrate prejudice, appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689.
Counsel's reasons for not objecting to the testimony of Fordeson, Black, and White do not appear in the record. As such, we must presume counsel's decision not to object was reasoned trial strategy and that counsel rendered effective assistance of counsel. See Mallett, 65 S.W.3d at 62-63. Further, the testimony of Black and Fordeson was relevant and therefore admissible to show appellant's pre-meditated intent to burglarize Roberson's home. See also Tex. R. Evid. 403. Appellant's seventh, eighth, and ninth points of error are overruled.
In appellant's tenth point of error, he claims the cumulative effect of counsel's alleged errors, described in points of error seven through nine, deprived him of a fair trial. Because appellant has failed to show he received ineffective assistance of counsel, he cannot show an adverse cumulative effect resulting from counsel's performance. Appellant's tenth point of error is overruled.
In appellant's sixth point of error, he claims the trial court erred by limiting the instruction of self-defense in the jury charge. At trial, appellant requested the following instruction on the theory that the victim provoked a physical confrontation with deadly force to which appellant responded in self-defense:
Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force.
A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force, and if a reasonable person in defendant's situation would not have retreated.
The State objected that appellant was not entitled to the instruction because the evidence did not raise the issue of self-defense. See Davis v. State, 597 S.W.2d 358 (Tex.Cr.App.), cert. denied, 101 S.Ct. 388 (1980). However, in an apparent abundance of caution, the trial court overruled the State's objection and included the self-defense instruction in the charge. In response, the State requested the following additional instructions: You are further instructed that a person in lawful possession of land or tangible movable property is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
A person is justified in using deadly force against another to protect his land or tangible, moveable property, and the possession thereof: (1) if he would be justified in using force in the first place, as herein above set forth; (2) when and to the degree he reasonably believes the deadly force is immediately necessary, as viewed from his standpoint at the time, to prevent the other person's imminent commission of the burglary, robbery, theft during the nighttime, or criminal mischief during the nighttime; and (3) he reasonably believes that (a) his land or property cannot be protected by any other means or (b) the use of force other than deadly force to protect his land or property would expose him or other persons to a substantial risk of death or serious bodily injury.
You are further instructed that under our law a person defending his habitation with deadly force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the person so defending is under no legal obligation to retreat irrespective of whether a reasonable person would have so acted.
The trial court included these instructions in the jury charge. Appellant contends that the State requested these instructions to show the jury that "if the deceased was using force or deadly force to protect his property at the time of the confrontation, then appellant would not have had the legal right to use deadly force to prevent the attack." These instructions, however, were not objectionable because the issues presented in them were raised by the evidence and the instructions were a correct statement of the law. Davis, 597 S.W.2d at 360. Appellant's sixth point of error is overruled.
We affirm the judgment of the trial court.
Delivered: January 29, 2003
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