Opinion
No. 4-05-00015-CR
Delivered and Filed: March 22, 2006. DO NOT PUBLISH.
Appeal from the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 03-1890-CR, Honorable Dwight E. Peschel, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Elizabeth Lee Blea was convicted of criminal solicitation to commit capital murder and was sentenced to thirty years of confinement. Blea appeals, arguing that she received ineffective assistance of counsel. We affirm the judgment of the trial court.
Background
Elizabeth Blea was married to Paul Blea, a police officer, for eight years. Roy Rivas, an inmate at the county jail, told law enforcement officials that Elizabeth Blea was trying to hire someone to kill her husband. After receiving this information from Rivas, law enforcement officials arranged for Rivas to meet with Elizabeth Blea. Rivas and an undercover law enforcement officer, Eddie Flores, met with Elizabeth Blea. During this first meeting, Elizabeth Blea solicited Flores to kill her husband. A second meeting was arranged, and at that meeting, Eddie Flores returned with a postdated check from Elizabeth Blea. The two meetings were recorded visually and audibly. Elizabeth Blea was arrested and after her arrest, made a voluntary statement implicating herself to law enforcement officials. She was later found guilty and now appeals, arguing that she was denied effective assistance of counsel.Discussion
Blea argues that she was denied effective assistance of counsel. We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986) (applying Strickland test). An appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Second, assuming the appellant has demonstrated deficient assistance, he must affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 813. Absent both showings, we cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and we look to the totality of the representation and the particular circumstances of each in evaluating the effectiveness of counsel. Id. When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid "deleterious effects of hindsight." Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. Further, the assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.; Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833. Blea contends that she received ineffective assistance of counsel because her trial counsel failed to "actively pursue bias among prospective jury members." The record shows the following occurred during voir dire:Defense counsel:
How do you feel about a police officer walking in and with his gun his badge, his uniform, and we know he's trained? Do we give him instant credibility?
Venireperson Johnson:
He's no different than any other witness on the stand. He has to tell the truth. Just because he wears a gun and a badge, that doesn't make him different.
Venireperson Acre:
I agree with her, same way. It's — the badge and gun doesn't make the officer. It's the person that makes the officer.
Defense counsel:
Mr. Milligan, how do you feel about that?
Venireperson Milligan:
Well, I would agree up to the point, if it came down to it was absolutely no way I could figure it out, I would go with the police officer.
Defense counsel:
You would?
Venireperson Milligan:
Yes, but not automatically. After I've heard everything, and it was just a matter of his word or their word, I couldn't personally tell the difference, I would go with the police officer.
Defense counsel:
I appreciate that. How many people agree with Mr. Milligan about that? Let me see. On this row? So we have Mr. Milligan, Mr. Hons, and Mr. Bading, is that correct? Okay. On the next row? It's Ms. Zamora, and Mr. Rhoades — that is it Ms. Rogers? Is there anybody else on that row? Anybody on the next row? Okay, Ms. Winningham. Anybody else? I too am just going to hold off until we see if we need to go further back. Now that that subject has come up, how many people agree with him, that all things being equal, will go with the police officer's testimony? Anybody on the first row? No. The second row? Third row? Okay.
* * *
Defense counsel:
Judge, can I — can you — you granted challenge for cause of Ms. Watson?
Court:
Number 10, Number 21, 27, 34, 41.
* * *
Defense counsel:
Okay, Mr. Milligan and Mr. Hons both said that they would all things being equal, would have a tendency to believe a police officer ultimately.
Prosecutor:
There is no disqualifying questions asked, Your Honor. It's not a disqualification, the way it was asked, certainly — not the test.
Court:
Denied.
Defense counsel:
Okay.
Court:
Anyone else?
Defense counsel:
Your Honor, you're not going to allow me to bring these folks up to the bench to clarify?
Court:
You haven't asked for it.
Defense counsel:
Okay. May I do that?
Court:
Which one do you want up?
Defense counsel:
Mr. Milligan and Mr. Hons.
* * *
(Open Court)
Court:
David Milligan, Doctor Milligan. Defense counsel wants to ask you a few more questions here at the bench.
Defense counsel:
Mr. Milligan, I just wanted to clarify, was it your position that, all things being equal, if it came down to one witness versus another, that you would have a tendency to believe the police officer over the other witness?
Venireperson Milligan:
Yeah, the police officer.
Defense counsel:
Okay, you would do that simply because he is a police officer?
Venireperson Milligan:Yeah, as long as he demonstrates anything that he was — I know they made a mistake, but everything totally equal, I can't make a decision, I would go in favor of the police officer.
Defense counsel:
Okay, and you would do that, even if you were instructed that you weren't supposed to do that, that the law required you to hold folks as being equal?
Prosecutor:
Your Honor, I'm going to object to the question. He's not going to be instructed not to do that.
Court:
Yes.
Venireperson Milligan:
Well, I mean I know
Court:
Doctor Milligan, don't answer the question. Anymore questions?
Defense counsel:
No, Your Honor.
Court:
Thank you, Doctor.
Defense counsel:
He said he would have a tendency to believe a police officer over another, all things being equal, and I would move to challenge him for cause.
Court:
Denied. Anthony Hons, Mr. Hons. Defense counsel, wants to ask you a few more questions.
Defense counsel:
Earlier, during the voir dire process, did you say that you would have a tendency to believe a police officer over another witness, all things being equal?
Venireperson Hons:
No.
Defense counsel:
You did not say that?
Venireperson Hons:
No.
Defense counsel:
I misunderstood that, okay. I withdraw that.Blea argues her trial counsel was ineffective because she "failed to actively pursue venire persons' bias in favor of police officers testimony" and because she "failed to elicit any responses from prospective jurors that would have helped her determine whether a prospective juror held any bias and should have been kept off the jury by use of peremptory challenges." Blea also emphasizes that Mr. Bading was referred to by defense counsel as one of the persons who agreed with venireperson Milligan on the issue of whether one should believe a police office over other witnesses and that Mr. Bading later became the foreperson of the jury. Blea's allegations against defense counsel, however, are not firmly founded in the record. See Thompson, 9 S.W.3d at 813. As such, Blea fails to present evidence rebutting the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Although Blea points to isolated instances of what her trial counsel should have done differently, Blea's complaints directed at her trial counsel involve actions that may or may not be grounded in sound trial strategy. The record does not reflect her attorney's reasons for doing or failing to do the things of which appellant complains. In such situations, the issues are better presented within the framework of a post-conviction writ of habeas corpus under article 11.07 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex.Crim.App. 1997); see also Thompson, 9 S.W.3d at 813 ("A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim. . . ."). Blea also argues that her trial counsel "was deficient in both pre- and post-trial representation by failing to prepare and follow through." Specifically, Blea points to her trial counsel's motion for continuance and motion to withdraw as counsel. In these motions, defense counsel stated that she had been unable to prepare for trial, and thus, was not ready to proceed with the trial set for August 2, 2004. Blea emphasizes that these motions were not ruled upon by the court. The trial, however, was re-set for October 18, 2004, over two months later. Thus, Blea's trial counsel was not forced to proceed to trial when she was not ready. And, according to the record, on October 18th, Blea's trial counsel was ready for trial. Additionally, Blea emphasizes that during trial, her counsel called only one witness, Blea herself, to testify. According to Blea, her counsel called only one witness to testify because she had not devoted sufficient time to investigate and interview potential witnesses. Blea also complains that although her counsel filed a motion for new trial, the motion was not set or heard. Blea's allegations, however, are not firmly founded in the record. See Thompson, 9 S.W.3d at 813. As such, Blea fails to present evidence rebutting the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.