Opinion
Nos. 05-08-00026-CR, 05-08-00027-CR, 05-08-00028-CR
Opinion issued January 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-45484-N, F06-45497-N, F06-45599-N.
Before Justices BRIDGES, RICHTER, and MAZZANT. Opinion By Justice MAZZANT.
OPINION
Joshua David Evans pleaded guilty to unauthorized use of a motor vehicle, robbery, and burglary and was sentenced to two years in state jail, ten years in prison, and twenty-five years in prison, respectively. In two issues, he claims the trial court abused its discretion by denying his motion for a new punishment trial. We affirm the trial court's judgments.
Cause number 05-08-00026-CR.
Cause number 05-08-00027-CR.
Cause number 05-08-00028-CR.
Background
Appellant entered open pleas of guilty and was convicted by the trial court of unauthorized use of a motor vehicle (UUMV), robbery, and burglary. The court sentenced appellant to two years in state jail and a $5,000 fine for UUMV, ten years in prison and a $5,000 fine for robbery, and twenty-five years in prison for burglary. Appellant filed motions for new trial. On December 14, 2007, the trial court held hearings on those motions. Shortly thereafter, the court entered orders denying the motions for new trial. This appeal followed.Discussion
Ineffective Assistance of Counsel In his first issue, appellant argues that the trial court abused its discretion by denying his motion for new trial because he received ineffective assistance of counsel. Specifically, appellant claims his trial counsel failed to have him evaluated by a psychologist or psychiatrist, thereby failing to learn that he "suffered from a major depressive disorder as well as a generalized anxiety disorder." An appellate court reviews a trial court's denial of a motion for new trial under an abuse of discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006). When, as in this case, the motion for new trial alleges ineffective assistance of counsel, we must determine whether the trial court's determination of the ineffective assistance claim and denial of the motion for new trial was clearly wrong and outside the zone of reasonable disagreement. See Freeman v. State, 167 S.W.3d 114, 116-117 (Tex.App.-Waco 2005, no pet.). Appellant was entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). "Reasonable probability" means a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson, 187 S.W.3d at 482-83. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). An attorney representing a criminal defendant has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Wiggins v. Smith, 539 U.S. 510, 521-22 (2003). "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 521-22. The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions . Strickland, 466 U.S. at 691. Counsel has been held deficient because of a failure to seek expert assistance on insanity or investigate the defendant's mental health history. See Freeman, 167 S.W.3d at 119-21; Conrad v. State, 77 S.W.3d 424, 427 (Tex.App.-Fort Worth 2002, pet. ref'd); Woods v. State, 59 S.W.3d 833, 837 (Tex.App.-Texarkana 2001), rev'd on other grounds, 108 S.W.3d 314 (Tex.Crim.App. 2003). Adequate representation does not, however, always require inquiry into a defendant's psychiatric history. See Purchase v. State, 84 S.W.3d 696, 700-01 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). The appellate court considers the totality of the representation. Robertson, 187 S.W.3d at 483. Isolated instances of errors of commission or omission will not render counsel's performance ineffective. Id. The appellate court also considers the adequacy of assistance as viewed at the time of trial, not through hindsight. Id. Here, Dr. Rycke Lynn Marshall, a clinical psychologist, conducted a psychological evaluation of appellant and testified at the motion for new trial hearing that appellant suffered from a "major depressive disorder" and a "generalized anxiety disorder." She thought there was a correlation between appellant's history of substance abuse and the depression and anxiety, and she believed both disorders began in his adolescence. She also believed that the episodes of substance abuse occurred during periods of depression or anxiety and that there was a connection between the depression, substance abuse, and appellant's illegal activities. She testified that both the depression and anxiety were treatable. She recommended that appellant "see somebody for individual therapy on a weekly basis," participate once again in Narcotics Anonymous (NA), and consult with a psychiatrist to determine if medication would help his depression and anxiety. If appellant was incarcerated, Marshall did not believe appellant "would fare very well." She believed prison would be "detrimental" to appellant and not allow him to receive the treatment or support he needed. Appellant's trial counsel, Tom Cox, testified at the motion for new trial hearing that he has practiced law since 1991 and that, in preparing appellant's case, he met with appellant "quite a few times and the witnesses that would testify on his behalf." Cox "went over with them testimony in support of our belief that probation was the appropriate punishment" and "set the matter up for a presentence investigation with the Probation Department." Counsel discussed with appellant matters that would "maximize" his opportunity for probation, including Narcotics Anonymous and Alcoholics Anonymous, both of which appellant attended. There were also discussions with appellant about his family background, history, and substance abuse. Cox insisted that he only told appellant that probation "appeared to be the just result" and that he "couldn't and didn't put percentages on it or say that he was likely or unlikely" to receive probation. Cox acknowledged that he sometimes used the services of a psychologist or psychiatrist in other cases, but he had never done so if, as in this case, the issue appeared to be substance abuse. Hence, he did not consider having appellant evaluated by a psychologist. Similarly, Cox did not tell appellant's family that hiring a psychologist would be an option or that a psychological evaluation could be beneficial. Cox testified that he met or spoke with each witness that testified and that "there were discussions about whether other witnesses might or might not be better." Cox claimed appellant never suggested that he had any mental disorders that would require examination by a psychologist or psychiatrist, and neither appellant nor any of his family ever indicated that appellant ought to see a psychiatrist or psychologist. Counsel was aware of appellant's prior drug use but pointed out that appellant testified at the punishment hearing and that they discussed any issues that might have affected appellant's eligibility for probation. Cox thought appellant had a "good chance" of getting probation but he "didn't say that he was going to get probation." Regarding the possibility of a sentence in the burglary case of between twenty-five years and life in prison, counsel said he and appellant "discussed what the possible outcome would be." Cox also told appellant that, since the State was not offering probation, the only way for the trial court to consider probation would be for appellant to enter an "open" plea. During the hearing, the trial court noted that the State offered appellant a fifteen-year sentence in the burglary case (with the striking of one of the enhancement paragraphs) and a two-year state jail sentence for unauthorized use of a motor vehicle. When asked about this plea offer, counsel said he communicated any plea offers from the State to appellant. Cox believed appellant entered into his plea voluntarily, and he did not force appellant to plead guilty or promise him anything to get him to plead guilty. In his discussions with appellant, counsel never believed appellant did not understand the nature of the charges against him or that he was unable to assist in the preparation of his defense. Cox had no knowledge that appellant was on any kind of medication or psychotropic drugs. To support his argument that trial counsel was ineffective for failing to investigate his mental status, appellant mainly relies on Conrad v. State, 77 S.W.3d at 424. However, Conrad is distinguishable because, in Conrad, defense counsel knew the defendant was receiving social security disability for a mental disorder at the time of trial, the defendant had attempted suicide "many times," and the defendant was previously found not guilty by reason of insanity. Id. at 425. Counsel neither investigated appellant's mental health status nor presented an insanity defense. Id. At the motion for new trial hearing, defense counsel testified that he relied on the reports of two court-appointed doctors and did not independently investigate the defendant's mental status. Id. at 426. In the present case, by contrast, defense counsel interviewed appellant, appellant's family, and other witnesses, yet found no indication that appellant had any mental health issues. Moreover, there is no indication here of factors, such as disability payments or a lack of understanding about the trial proceedings, that might have prompted further investigation into appellant's competency. On the contrary, counsel testified that appellant appeared competent, understood the proceedings against him, and counsel was not told that appellant was on any kind of medication or had any mental disorders that required examination by a psychologist or a psychiatrist. Appellant has not cited, nor have we found, any authority stating that a trial counsel must seek expert psychological or psychiatric assistance even when, as in this case, there was no indication of incompetency. See Purchase, 84 S.W.3d at 700-01. The court in Conrad also concluded that prejudice was not shown because there was no evidence offered at the motion for new trial hearing that any physician or social worker would have testified that the defendant was legally insane at the time of the offense. Conrad, 77 S.W.3d at 426-27. In this case, appellant believes counsel's error prejudiced his defense because it is "highly likely" that if the trial court had been presented with evidence of appellant's depression and anxiety "it would have placed [him] on probation with mental health treatment as a condition for him to receive therapy." Given the record before us, however, this is little more than conjecture and speculation. Even if we agreed with appellant that trial counsel's representation fell below an objective standard of reasonableness, appellant has not shown that the outcome would have been different absent counsel's unprofessional error. Appellant's extensive criminal history includes probation violations. According to his testimony at the sentencing hearing, appellant was placed on probation after being convicted of burglary in 2002, but that probation was revoked because, among other things, appellant failed to pay fees and smoked marijuana. After being released from prison, appellant was arrested for possessing cocaine and sentenced to two years in prison. He was still on parole when he committed the instant offenses. Appellant also testified at the sentencing hearing about his depression, drug use, and chaotic family background. We therefore conclude appellant has not satisfied the second prong of Strickland. See Strickland, 466 U.S. at 693 (not enough for a defendant to show that counsel's errors had some conceivable effect on the outcome of the proceeding). We overrule appellant's first issue. "In the Interest of Justice" In his second issue, appellant claims the trial court abused its discretion by denying the motion for new trial because the interests of justice require it due to trial counsel's failure to discover and present evidence of appellant's "chaotic upbringing and two psychological disorders." A trial judge has the authority to grant a new trial "in the interest of justice." State v. Herndon, 215 S.W.3d 901, 906 (Tex.Crim.App. 2007). The decision to grant or deny the motion for new trial is reviewed for an abuse of discretion. Id. The court of criminal appeals has noted that a trial court's discretion to grant a new trial in the interest of justice is not "unbounded or unfettered." Id. at 907. The court wrote:A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. He cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or "received a raw deal." . . . Although not all of the grounds for which a trial court may grant a motion for new trial need be listed in statute or rule, the trial court does not have discretion to grant a new trial unless the defendant shows that he is entitled to one under the law. To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion.Id. As a general rule, a trial court will not abuse its discretion in granting a motion for new trial if the defendant (1) articulated a valid legal claim in his motion, (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim, and (3) showed prejudice to his substantial rights under the rules of appellate procedure. Id. at 909; see Tex. R. App. P. 44.2.
The defendant need not establish reversible error as a matter of law before the trial court may exercise its discretion in granting a motion for new trial. On the other hand, trial courts do not have the discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws adversely affected his substantial rights to a fair trial.Herndon, 215 S.W.3d at 909. In this case, appellant claims "that the incarceration of an individual who needs psychological help and has never received it — even during earlier incarcerations — operates as a miscarriage of justice." Appellant, however, has failed to demonstrate that his trial was seriously flawed and that the flaws adversely affected his substantial rights to a fair trial. The sentences imposed on appellant for the robbery and burglary offenses — the most serious charges facing him — were well within, and toward the lower end, of the ranges of punishment set by the legislature. As noted previously, appellant's criminal history includes probation violations, and he was still on parole when he committed the instant offenses. There is no indication that appellant had difficulty understanding the legal proceedings or was unable to assist in his defense. Furthermore, appellant cannot claim he would have no access to psychological or psychiatric treatment in prison. We therefore conclude that the trial court did not abuse its discretion. Appellant's second issue is overruled. We affirm the trial court's judgments.