Opinion
No. 04-16-00281-CR
05-10-2017
John Brennon DUNCAN, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR8642
Honorable Lorina I. Rummel, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
John Brennan Duncan was convicted by a jury of aggravated assault with a deadly weapon and evading detention while using a vehicle. The sole issue raised in this appeal is whether trial counsel rendered ineffective assistance of counsel. We affirm the trial court's judgments.
BACKGROUND
After returning from a bar, Duncan poured gasoline throughout the mobile home where he lived with his girlfriend and also poured gasoline on his girlfriend. After his girlfriend called 911, Duncan drove away from the mobile home. When a police officer approached Duncan's vehicle in the parking lot of a convenience store, Duncan disregarded the officer's commands and drove away. Duncan was eventually arrested after a spike strip placed in the road disabled Duncan's vehicle.
Duncan was charged with attempted arson, aggravated assault with a deadly weapon, and evading detention. The trial court declared a mistrial with regard to the attempted arson offense, and a jury found Duncan guilty of the other two offenses. The jury found the enhancement allegations to be true and assessed Duncan's sentences at ninety years' imprisonment. Duncan appeals.
INEFFECTIVE ASSISTANCE
Duncan contends his trial counsel rendered ineffective assistance of counsel through the following four actions: (1) failing to object to insufficient proof of the chain of custody with regard to the clothing Duncan was wearing the night he was arrested; (2) failing to object when the State cross-examined Duncan's mother and elicited testimony regarding prior bad acts; (3) failing to investigate a possible insanity defense or to request a mid-trial continuance to have Duncan's mental state evaluated; and (4) failing to object to an officer's testimony during the punishment phase regarding a hearsay statement made by one of Duncan's ex-girlfriends.
Under Strickland v. Washington, Duncan has the burden to show by a preponderance of the evidence that: (1) trial counsel's conduct was deficient, meaning counsel's representation fell below an objective standard of reasonableness and was not the result of reasonable professional judgment; and (2) but for counsel's deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. 466 U.S. 668, 690, 694 (1984); Ex parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ex parte Saenz, 491 S.W.3d 826.
"There is a strong presumption that counsel's conduct was reasonable, and judicial scrutiny of counsel's conduct is highly deferential." Id. When the record is silent regarding counsel's reasons for the challenged conduct, we must "assume a strategic motivation if any can possibly be imagined," and we "will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Id. at 828 (internal quotations omitted). "A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "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 involving such a serious allegation." Id. Furthermore, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
In this case, no motion for new trial was filed; therefore, the record is silent regarding the reasons for trial counsel's actions. The trial lasted approximately five days, and Duncan has identified only four isolated bases for asserting ineffective assistance. Our review of trial counsel's representation, however, is based on the totality of the circumstances, not on an examination of isolated acts or omissions. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004). And, the right to effective assistance of counsel "does not provide a right to errorless counsel." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Because the record is silent as to the reasons for trial counsel's actions, Duncan has not met his burden of overcoming the strong presumption that counsel's conduct was reasonable.
Even if we consider Duncan's specific complaints based on the record presented, we still would hold Duncan did not meet his burden. Duncan first contends trial counsel's representation was deficient because he failed to object to insufficient proof of the chain of custody regarding the clothing Duncan wore on the night he was arrested. "The chain of custody is conclusively proven if the officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial." Hartsfield v. State, 200 S.W.3d 813, 818 (Tex. App.—Texarkana 2006, pet. ref'd). "Any gaps in the chain of custody go to the weight of the evidence, not admissibility; however, proof should be shown as to the beginning and end of the chain." Id. Duncan contends trial counsel should have objected because the State failed to offer sufficient proof of the beginning of the chain.
Trial counsel objected when the State sought to introduce Duncan's clothing through the testimony of the deputy fire marshal who retrieved the clothing from the property room, and the trial court sustained the objection. The State then called the officer who seized the clothing from Duncan and who observed another fire marshal place the clothing in marked metal cans because of the gasoline odor. Because the officer's testimony established the beginning of the chain, trial counsel was not likely deficient in failing to object. See Villarreal v. State, No. 04-15-00290-CR, 2016 WL 4376630, at *7 (Tex. App.—San Antonio Aug. 17, 2016, no pet.) (not designated for publication) (holding officer's testimony who observed nurse draw blood and label vials sufficient to establish beginning of chain of custody). However, even if we assume trial counsel should have objected to the admission of the evidence absent the testimony of the fire marshal who marked the metal cans, Duncan would be unable to satisfy the second prong of Strickland by showing a reasonable probability that the result of the proceeding would have been different absent the admission of the clothing. 466 U.S. at 694. In one of the recorded phone calls Duncan made to his girlfriend from jail which was admitted into evidence, Duncan admitted his clothing was soaked in gasoline and that his clothing had been taken from him after he was arrested. The jury's viewing of the actual clothing does not undermine our confidence in the outcome of the trial. Ex parte Saenz, 491 S.W.3d at 826.
Duncan's second specific complaint relates to trial counsel's failure to object when the State questioned Duncan's mother about whether she asked two of Duncan's former girlfriends to drop assault charges against him. Duncan contends the evidence was improper under Rule 404(b). The rules of evidence, however, permit a witness to be cross-examined on specific instances of conduct when they are used to establish the witness's bias or motive for testifying. See Johnson v. State, 490 S.W.3d 895, 910 (Tex. Crim. App. 2016); Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). In this case, evidence that Duncan's mother urged other complainants to drop charges against her son establishes her bias in favor of her son. Even assuming trial counsel was deficient in failing to object, Duncan has not shown a reasonable probability that the result of the proceeding would have been different absent the testimony.
Duncan's third specific complaint is that trial counsel failed to investigate an insanity defense or to request a mid-trial continuance to have his competency evaluated. The record, however, does not support Duncan's premise that trial counsel failed to investigate an insanity defense. Furthermore, trial counsel obtained permission to hire an expert who would opine Duncan lacked the intent to commit the offenses; however, the expert would not testify Duncan was insane. Therefore, the record does not establish that any expert would testify in support of an insanity defense. See Parker v. State, 462 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding appellant failed to demonstrate prejudice when record did not establish expert testimony was available and would have benefitted appellant).
Duncan's final complaint is based on trial counsel's failure to object to the testimony of an officer during the punishment phase of trial. The officer testified that one of Duncan's former girlfriends recanted her statement in an effort to drop the assault charges pending against him. Duncan contends trial counsel should have objected when the officer was asked if the former girlfriend wanted to recant because Duncan was on parole for a homicide and she did not want him to return to prison. Duncan asserts no evidence in the record suggests he ever committed an act of homicide. The record, however, contains an indictment charging Duncan with two counts of attempted murder. Although Duncan was allowed to plead to the lesser offense of aggravated assault with a deadly weapon, we are not convinced a reasonable probability exists that the result of the proceeding would have been different if trial counsel objected to the isolated reference to a homicide in the question, especially since trial counsel clarified during his closing argument that Duncan was never convicted of a homicide.
CONCLUSION
The judgments of the trial court are affirmed.
Karen Angelini, Justice DO NOT PUBLISH