No. 14-04-00108-CR
Opinion filed August 27, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 944,481.
Panel consists of Justices SEYMORE, BROWN, and SULLIVAN.
KENT C. SULLIVAN, Justice.
Appellant, Quindarle Daray Batts, was convicted of aggravated sexual assault of a child. In the sole issue presented on appeal, appellant claims the trial court erred in denying his motion for new trial because the evidence presented demonstrates that he received ineffective assistance of counsel during the punishment phase of trial. Finding no reversible error by the trial court, we affirm the judgment.
BACKGROUND
On February 4, 2004, a jury convicted appellant of aggravated sexual assault of his eleven-year-old second cousin, L.C. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008). Appellant elected to have his punishment decided by the jury. During the punishment phase, the State called several witnesses, including family members, to testify about previous instances of appellant's alleged sexual misconduct with minors. L.P., appellant's first cousin, testified that appellant sexually assaulted her when she was approximately thirteen years old. Another first cousin, Y.P., testified that appellant asked her to have sex with him when she was ten or eleven years old. L.S., appellant's ex-girlfriend, testified that she had sexual intercourse with appellant when she was fourteen and he was over eighteen years old. The jury also heard evidence indicating that appellant sexually assaulted his daughter, T.S., when she was approximately five years old. The defense rested without calling any witnesses. The jury sentenced appellant to life imprisonment. Appellant filed a motion for new trial alleging that he received ineffective assistance from his trial counsel during the punishment phase. He argued his trial counsel was ineffective because he failed to conduct a meaningful investigation of the facts of the case or to interview and secure character witnesses to testify for appellant. Appellant presented several affidavits from himself and his family members. The affidavits of appellant's wife, mother, brother, two sisters, and a friend are essentially identical. Each states that the affiant "was present and available to testify as a character witness . . . at [appellant's] trial. [The affiant] would have testified [that appellant] was a peaceable, hard-working, family man." Each affidavit also provides that appellant's trial counsel, James Brooks, never discussed the possibility of testifying as a character witness with the affiant. Brooks testified by affidavit that he spoke to potential character witnesses during the course of his investigation of the case. Through that investigation, he learned that appellant's family members were aware not only of appellant's previous convictions, but also of several other allegations of sexual abuse of children for which appellant had not been prosecuted. Relying on that information, Brooks testified that he believed the potential for prejudice outweighed any potential benefit appellant's family might provide as character witnesses. After considering the evidence, the trial court denied appellant's motion on May 28, 2008. ANALYSIS
Appellant contends that the trial court committed reversible error when it denied his motion for new trial. He claims the affidavits submitted in support of the motion demonstrate that he received ineffective assistance of counsel during the punishment phase because his attorney failed to present mitigating evidence. Appellant argues that his family was available to testify as character witnesses but that trial counsel neglected to explore the possibility of presenting their testimony at punishment. We review a trial court's denial of a motion for new trial under an abuse-of-discretion standard. See State v. Herndon, 215 S.W.3d 901, 906-07 (Tex. Crim. App. 2007); Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). The trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record would support the trial court's ruling. Id. In reviewing a claim of ineffective assistance of counsel, we apply a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, appellant must prove that counsel's performance was deficient, that is, that his representation fell below an objective standard of reasonableness. See id. at 687-88. Second, appellant must show that counsel's deficient performance prejudiced his defense. See id. at 687. This latter element requires appellant to demonstrate a reasonable probability that, but for the allegedly deficient representation, the result of the proceeding would have been different. See id. at 694. When reviewing a claim of ineffective assistance of counsel, judicial scrutiny of counsel's performance must be highly deferential. Id. at 689. We must indulge a strong presumption that counsel's conduct falls withing the wide range of reasonable professional assistance. Id. In other words, appellant must overcome a presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Turning to the issue presented here, defense counsel is required to seek out and interview potential witnesses as a part of his independent investigation of the facts of the case. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). In this case, the evidence on this point conflicts; Brooks's affidavit says he interviewed possible character witnesses, while those presented by appellant suggest he did not. When the evidence creates a fact issue, we are required to defer to the trial court's factual findings that are supported by the record, even when, as here, no witnesses testify live and all of the evidence is submitted in written affidavits. See Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). As evidenced by its ruling, the trial court apparently chose to believe Brooks's testimony and disbelieve that presented by appellant. Therefore, we must defer to the trial court's factual determination that Brooks conducted a sufficient investigation of potential character witnesses. See id. Under the record presented, we cannot conclude that defense counsel's decision not to call character witnesses here amounted to ineffective assistance of counsel. The determination of which witnesses to call is clearly a question of an individual lawyer's trial strategy. Ortiz v. State, 866 S.W.2d 312, 315 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd) (citing Ex parte Ewing, 570 S.W.2d 941, 943 (Tex. Crim. App. 1978)). Generally, an attorney's strategic decision to not call a witness will be reviewed only if there was no plausible basis for doing so. See id. Here, Brooks articulated a plausible basis for his decision to refrain from presenting the testimony of appellant's family at punishment. In his affidavit, Brooks explained that he believed the testimony of the suggested witnesses may have prejudiced appellant more than it would have benefitted him. That is, Brooks claims that appellant's family members were aware of additional allegations of sexual abuse made against appellant for which he had not yet been indicted. He believed that their testimony might open the door to admission of evidence of other offenses that otherwise would have been inadmissible. Brooks was also concerned that appellant's family might be asked about the accusations brought by appellant's cousins and ex-girlfriend. In that event, they would be forced into the dilemma of having to either confirm the allegations or suffer a loss of credibility that would undo whatever benefit their testimony might have provided. When, in counsel's reasonable judgment, a possible witness is as potentially dangerous as helpful, it is not ineffective assistance to decline to call that witness. Damian v. State, 881 S.W.2d 102, 110 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The fact that another attorney might have pursued another trial strategy does not, by itself, render trial counsel's assistance ineffective. Ortiz, 866 S.W.2d at 315. We conclude that Brooks's decision not to call character witnesses was reasonable because, according to Brooks, his investigation of potential character witnesses caused him to believe that they may have harmed appellant's case more than they would have helped it. See Turner v. State, 932 S.W.2d 622, 625 (Tex. App.-Houston [14th Dist.] 1996, no pet.). Thus, the trial court's denial of appellant's motion for new trial was neither arbitrary nor unreasonable. See Webb, 232 S.W.3d at 112. We overrule the only issue presented on appeal. CONCLUSION
Finding no reversible error by the trial court, we affirm.