Opinion
NO. 12-11-00006-CR
01-31-2012
MICHAEL WAYNEHOWERTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 3RD
JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Michael Wayne Howerton appeals from his conviction for intoxication manslaughter. In one issue, Appellant argues that he received ineffective assistance of counsel. We affirm.
BACKGROUND
Appellant was the driver of an automobile that collided with a tractor-trailer truck on a rural highway in August 2008. As a result of the collision, Appellant's vehicle rolled and he and his passenger were thrown from the vehicle. Appellant was injured seriously, and his passenger was killed.
Appellant was indicted for the felony offense of intoxication manslaughter. He pleaded not guilty, and a trial was held. One of the issues at trial was the location of the tractor-trailer when it was struck by Appellant's vehicle. Photographs taken after the wreck showed that the tractor-trailer was in an eastbound lane on the south side of the street with the outermost driver's side rear wheels centered on the dividing line of the two lane highway. The driver had just entered the roadway from his driveway on the north side of the street. The State's version of events was that the position of the truck in the photographs was very close to its position at the time Appellant's vehicle struck the truck and that the collision occurred at or very near to the center line of the roadway. The State's evidence also showed that Appellant was driving at a high rate of speed, did not engage his brakes before the collision, and that he had a significant level of alcohol in his blood.
Appellant did not concede at trial that he was intoxicated, but he does not contest that conclusion for purposes of this appeal. The evidence showed that Appellant's blood alcohol content was between 0.79 and 0.82 grams of ethanol per 100 milliliters of blood. This sample was taken some time after the wreck and after a significant quantity of saline had been introduced into Appellant's bloodstream. There was testimony that both the passage of time and the dilution of his blood with saline would result in the observed measurement being lower than Appellant's actual blood alcohol content at the time of the wreck. Additionally, witnesses testified that Appellant smelled of an alcoholic beverage after the wreck.
Appellant's version of events, to the extent that he was able to present it, was that the trailer had not cleared Appellant's lane at the time of the collision and that the collision occurred in Appellant's own lane. During his case, Appellant suggested that the trailer may have been moved out of his lane of traffic as a result of the collision or that the truck driver may have moved it forward, and out of Appellant's lane, after the collision. Appellant attempted to present his father, an experienced truck mechanic, and a private investigator as expert witnesses to support this theory, but the trial court determined that they were not experts in accident reconstruction and did not permit them to offer an opinion as to where the collision occurred.
In his brief, Appellant states that the trial court's ruling excluding the witnesses' testimony was correct.
The jury found Appellant guilty as charged. The trial court sentenced Appellant to imprisonment for fifty years. Appellant filed a motion for new trial in which he asserted that the evidence was insufficient to support the verdict and that the trial court erred in disallowing his lay witnesses to offer expert opinions. The motion for new trial was denied, and this appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
In one issue, Appellant argues that he received ineffective assistance of counsel. Specifically, he asserts that expert testimony was necessary for his defense, that he lacked funds to hire an expert witness, and that his trial counsel should have but did not request funds to hire an expert witness. Applicable Law
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The first step requires an appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel's representation is not reviewed for isolated or incidental deviations from professional norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
The second step requires the appellant to show prejudice from the deficient performance of his attorney. See Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011), Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Ex parte Martinez, 330 S.W.3d at 900.
We begin with the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume counsel's actions and decisions were reasonable and were motivated by sound trial strategy. See id. Appellant has the burden of proving ineffective assistance of counsel. See id.
In Ex parte Briggs, 187 S.W.3d 458, 469-70 (Tex. Crim. App. 2005), the court of criminal appeals held that the defendant satisfied both prongs of the Strickland test because her counsel failed, among other things, to request state-funded expert assistance and that it prejudiced the defense because it concluded that it was "highly likely that a jury would have returned with a 'not guilty' verdict" had counsel done so. Analysis
Appellant argues that his attorney should have sought funds from the court to engage an expert to assist with the defense. However, Appellant has failed to show that counsel did not provide reasonably effective assistance of counsel or that he was prejudiced by counsel's representation. The basis of Appellant's claim is an affidavit by trial counsel that is attached to his appellate brief. An affidavit attached to a brief is not part of the appellate record and may not be considered as evidence on appeal. See, e.g., Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) ("An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal." (footnotes omitted)); Thompson v. State, 612 S.W.2d 925, 928 (Tex. Crim. App. 1981) ("Articles attached to briefs are not properly before this Court as evidence."); Martin v. State, 492 S.W.2d 471, 472 (Tex. Crim. App. 1973); Cyphers v. State, No. 12-07-00304-CR, 2009 Tex. App. LEXIS 1716, at *22 n.10 (Tex. App.-Tyler Mar. 11, 2009, pet. ref'd) (mem. op., not designated for publication). This issue was not raised in the motion for new trial, and without the affidavit, there is no evidence in the record about counsel's decisions with respect to expert witnesses. Accordingly, Appellant has failed to show that counsel rendered ineffective assistance or that he was prejudiced by counsel's representation.
Appellant's claim would fail even if the affidavit were part of the record. In Ex parte Briggs, 187 S.W.3d at 469-70, the court of criminal appeals held that an attorney rendered ineffective assistance because he did not pursue expert testimony solely because of a lack of funds. In this case, counsel does state in the affidavit that Appellant lacked funds to hire an expert. Furthermore, counsel's affidavit shows that he was unfamiliar with the Supreme Court case of Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed. 2d 53 (1985), and that it did not occur to him to ask the trial court to provide him with funds to engage an expert witness. But this lack of familiarity does not show that counsel was ineffective or that Appellant was prejudiced by his actions.
Generally, in cases where a defendant challenges trial counsel's failure to call a witness or present evidence, it is necessary to show that such witnesses or evidence is available and relevant to consideration of the verdict. See, e.g., Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) ("[T]he 'failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.'") (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)); Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986); Johnston v. State, 959 S.W.2d 230, 236 (Tex. App.-Dallas 1997, no pet.). Specifically, and with respect to failing to seek appointment of an expert witness, this court has held that to show prejudice, an appellant must show that an expert would have testified in a manner that would be beneficial. See Brown v. State, 334 S.W.3d 789, 803 (Tex. App.-Tyler 2010, pet. ref'd) (citing Cate v. State, 124 S.W.3d 922, 927 (Tex. App.-Amarillo 2004, pet. ref'd)); see also Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.-Texarkana 2002, pet. ref'd).
Such a showing was made in Ex parte Briggs, where it was necessary to the result reached by the court that the applicant showed that there was "considerable doubt as to the reliability" of the expert conclusions that undergirded the State's theory of the case. Ex parte Briggs, 187 S.W.3d at 470. Here, Appellant has made no showing that an expert witness could have testified in a manner that would have been helpful to his defense or that an expert could have offered a reasonable challenge to the conclusions reached by the State's expert witnesses as to the location of the collision. There is no evidence, other than the excluded testimony of his lay witnesses, to suggest that the collision occurred in Appellant's lane of travel. Furthermore, there is no evidence in the record, even if we consider counsel's affidavit, to permit the conclusion that an expert could review the evidence in this case and offer an opinion helpful to Appellant's position. And finally, as the State points out, the jury could have reasonably concluded that Appellant was at fault regardless of the location of the collision because of Appellant's intoxication, the speed at which he was travelling, and his lack of braking or turning before the collision. Because there is no evidence that an expert witness could have testified in a manner that would have improved Appellant's case, we hold that Appellant has failed to establish that counsel's failure to seek funds to hire an expert witness was ineffective assistance of counsel or that he was prejudiced by his attorney's conduct. We overrule Appellant's sole issue.
DISPOSITION
Having overruled Appellant's sole issue, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., andHoyle, J.
(DO NOT PUBLISH)
JANUARY 31, 2012
NO. 12-11-00006-CR
MICHAEL WAYNE HOWERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 3rd Judicial District Court
of Anderson County, Texas. (Tr.Ct.No. 29955)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.