Opinion
NO. 09-11-00195-CR
07-11-2012
ROBERT GLENN BAILEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 10-04-04497-CR
MEMORANDUM OPINION
Robert Glenn Bailey appeals his conviction for robbery. He argues that his trial counsel provided ineffective assistance at trial, and that the trial court erred in denying his motion for new trial and in failing to hold a hearing. Finding no reversible error, we affirm the trial court's judgment.
Although the indictment and judgment refer to the defendant as Robert Glenn Bailey, the record reflects he is also known as Robert Glenn Bailey, Jr.
THE FACTS
The complainant testified she was attacked and robbed at night. She had gone to the post office during the early afternoon. She noticed a man pass by her while she was in the post office. When she walked out, the man was sitting in a gray Nissan Titan. He stared at her.
That night, she drove to a bar to meet someone about work. While driving on the freeway, she noticed a man in a gray truck pulling up close to her, moving to the right of her, looking over at her, speeding up in front of her, and then slowing down. She believed the truck was the same one she had seen earlier that day. The man followed her off the freeway and pulled into the parking lot of the bar. She looked in her mirror while she was sitting in her car. When she opened her door to get out, a man grabbed her, and then covered her mouth and nose. She struggled to get away. He choked her. She bit his finger and then screamed. He took her car keys, her wallet, and her money.
The bouncer at the bar heard her scream. He saw a man choking her. The bouncer ran to her aid. He testified he could see the man, and the man fled. The bouncer caught up with him, they struggled, and the man began choking him. The bouncer identified Bailey as the man he saw attacking the woman. The woman testified Bailey was the man who attacked and robbed her -- the man she saw at the post office earlier in the day.
Bailey's defense was misidentification. He claimed that he was not the person who attacked and robbed the woman, and that he had not stalked her earlier in the day. Bailey explained that, with the exception of a short lunch break, he was at work all day. He acknowledged that he was in the parking lot that night, and that he was the person the bouncer chased. But, Bailey contends, the bouncer mistakenly thought he was the person who attacked the woman. Bailey testified he fled because the bouncer ran at him, and Bailey was afraid. He fled to surrounding woods and hid in a ditch. Police caught and arrested him.
INEFFECTIVE ASSISTANCE CLAIM
The Sixth Amendment to the United States Constitution guarantees individuals the right to assistance of counsel in a criminal prosecution. To prevail on a claim of ineffective assistance, an appellant must meet the test of Strickland. He must show that his counsel's representation fell below an objective standard of reasonableness, and that the deficient performance prejudiced the defense. There is a strong presumption that
U.S. Const. amend. VI.
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Strickland, 466 U.S. at 687-88.
counsel's performance fell within the wide range of reasonably professional assistance. The ineffective assistance claim must be "'firmly founded in the record,'" and "'the record must demonstrate'" the meritorious nature of the claim.
Lopez, 343 S.W.3d at 142.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
A defendant has the burden of showing that his counsel was ineffective. Because the record is generally undeveloped, a direct appeal is usually an inadequate vehicle for raising an ineffectiveness claim. Ordinarily, trial counsel should be afforded an opportunity to explain his or her actions before a determination of ineffectiveness is made. When the record does not reflect counsel's motivations, the appellant usually cannot overcome the strong presumption of reasonableness. If there is a possibility that the conduct could have been legitimate trial strategy, a reviewing court on direct appeal will "defer to counsel's decisions and deny relief on an ineffective assistance claim."
Thompson, 9 S.W.3d at 813.
Lopez, 343 S.W.3d at 143.
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002).
GUILT/INNOCENCE PHASE
Bailey first asserts that his counsel's trial preparation, including pre-trial investigation, was deficient. Trial counsel has a duty to make '"reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" Bailey contends that his attorney did not subpoena phone records and employer records, and did not interview witnesses who would have testified Bailey was at work that day, except for a short lunch break. If this testimony had been presented, Bailey argues, the jury would have concluded that he could not have been the man who was staring at the woman in the post office parking lot.
Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91); Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011).
Whether or not Bailey was the man at the post office during the day, however, does not constitute an alibi for Bailey for the robbery offense that night. The bouncer testified he saw the attack and immediately chased the attacker. Bailey admitted being the one chased. The woman testified she was able to identify Bailey as her attacker. We do not see a reasonable probability that evidence of Bailey's presence at work that day would have changed the result of the trial.
See Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010).
Bailey also asserts that trial counsel was ineffective, because he did not present evidence of Bailey's good character at the guilt/innocence phase, did not investigate his background, and did not prepare him for trial. The decision to present witnesses is largely a matter of trial strategy. Counsel's explanation for his conduct is usually a crucial issue that must be developed in the trial court. The record is silent as to trial counsel's reasons for not calling the witnesses and for his decisions regarding trial preparation. The record does not show what investigation trial counsel conducted, and the record does not establish what investigation or preparation was not done that would have been helpful for Bailey, or that the failure to conduct an investigation was necessarily prejudicial to him. Because the reasonableness of trial counsel's decision-making involves facts that do not appear in the record before us, the record is insufficient to show that Strickland's test has been satisfied.
See Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007); Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).
See Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (Counsel's reason for not calling any witnesses was not "firmly grounded" in the record.).
See Strickland, 466 U.S. at 687, 691; see also Wiggins, 539 U.S. at 534.
Bailey argues counsel was ineffective for failing to impeach the complainant with prior inconsistent statements, for eliciting prejudicial testimony from her, and for repeatedly conceding guilt. The record does not show that counsel conceded guilt through the phrasing of his questions. The record reveals trial counsel conducted a cross-examination of the complainant regarding her identification of Bailey as the offender. Trial counsel developed a basis for his theory of misidentification. The decision on how to impeach a witness is generally a strategic one. Bailey has not provided a sufficient basis for this Court to disregard the presumption that trial counsel acted reasonably.
See Oldham v. State, 5 S.W.3d 840, 848 (Tex. App.—14th Dist.] 1999, pet. ref'd).
See Davis v. State, 276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. ref'd).
Bailey contends trial counsel was ineffective because he failed to obtain an expert witness on eyewitness identification techniques in order to impeach the complainant's credibility. In his motion for new trial, counsel submitted a report and curriculum vitae from an expert in the field of eyewitness identification. The expert's report reflects that the expert would have identified potential problems with the eyewitness evidence and the photo-spread evidence.
The question, however, is not whether there is a qualified expert available who could assist in disputing the witnesses' testimony, but whether trial counsel's performance was deficient in failing to secure that expert. The record is not sufficiently developed to show why trial counsel did not obtain expert testimony on eyewitness identification. Counsel may have decided that reasonable doubt could be created by cross-examination, and the record shows that the police officers, the complainant, and the bouncer were cross-examined on the identification of Bailey as the attacker.
See generally Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010).
See Rylander, 101 S.W.3d at 110-11.
Bailey argues that trial counsel failed to object to what he characterizes as victim-impact testimony during the guilt/innocence phase of trial. The prosecutor offered testimony from the complainant on the effect of the attack and robbery upon her life. Victim-impact evidence is generally irrelevant at the guilt/innocence phase of the trial, because it does not tend to make more or less probable the existence of any fact of consequence at guilt/innocence. The record is silent as to why defense counsel did not object to the State's line of questioning. Regardless, under the circumstances of this case we do not see a reasonable probability that the result would have been different but for counsel's conduct. We overrule issue one.
See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990); Martin v. State, 176 S.W.3d 887, 903 (Tex. App.—Fort Worth 2005, no pet.).
See Tong v. State, 25 S.W.3d 707, 713-14 & n.10 (Tex. Crim. App. 2000) (Failure to object to victim-impact testimony is better raised in a post-conviction application for writ of habeas corpus.).
PUNISHMENT PHASE
Bailey contends his trial counsel was ineffective during the punishment phase of the trial. With his motion for new trial, Bailey presented affidavits from sixteen witnesses attesting to Bailey's good character.
Counsel called two witnesses -- Bailey and a probation officer -- during the punishment stage. The probation officer testified that Bailey had not given any problems while he was out on bond for the offense, and based on that record he would be a good candidate for probation.
The record does not reveal why trial counsel chose this strategy rather than a different mitigation strategy with multiple character witnesses. A silent record generally does not defeat the strong presumption of effective assistance of counsel. The fact that a different trial counsel might have pursued a different strategy during the punishment phase is not sufficient to prove counsel was ineffective. We overrule issue two.
See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).
Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
MOTION FOR NEW TRIAL
Bailey argues the trial court abused its discretion in denying his motion for new trial. Bailey also argues the trial court abused its discretion in failing to hold an evidentiary hearing on the motion for new trial.
The purposes of a hearing on a motion for new trial are to determine whether the case should be retried and to complete the record for presenting issues on appeal. A hearing is not an absolute right. A trial judge abuses his discretion in failing to hold a hearing if the motion and accompanying affidavits raise matters that are not determinable from the record and establish reasonable grounds showing that the defendant could potentially be entitled to relief. We review a trial court's denial of a hearing on a motion for new trial for an abuse of discretion.
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).
Id.
Id. at 200.
Id.
Where the trial judge is familiar with the history and facts of the case, he or she has the discretion to decide a motion for new trial based solely on the affidavits. Bailey's evidence attached to the motion for new trial includes affidavits from four co-workers who stated he was at work during the day of the offense. The fact that he was at work that day does not establish he did not commit the crime that night. The evidence accompanying the motion for new trial also included affidavits attesting to Bailey's good character. Trial counsel's apparent strategy at the time of the punishment hearing was to demonstrate that a prison sentence was not appropriate punishment for Bailey. Given the record before the trial court, including the affidavits presented and other records attached to the motion for new trial, and the trial court's familiarity with the trial itself, we cannot say the trial judge abused his discretion. The trial court did not err in denying the motion for new trial. We overrule issues three and four. We affirm the judgment.
See Holden v. State, 201 S.W.3d 761, 764 (Tex. Crim. App. 2006).
AFFIRMED.
_______________
DAVID GAULTNEY
Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.