Opinion
No. 05-15-00347-CR
01-27-2016
OJAY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-47079-N
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Ojay Johnson appeals his conviction for aggravated assault with a deadly weapon, not a firearm. In a single issue, appellant contends he was denied effective assistance of counsel. We affirm the trial court's judgment.
Appellant waived a jury and pleaded guilty to aggravated assault with a deadly weapon involving family violence. During the punishment phase, appellant's grandmother, who is the complainant, testified appellant suffocated her with a pillow and bit two of her fingers after she refused to give him money. The complainant said she wanted appellant to go to prison. Appellant's aunt testified she believed appellant should go to prison for "10 to 20 years," and his cousin believed the judge should "give him the maximum sentence." In mitigation of punishment, appellant told the court he was using PCP at the time of the offense and asked for probation with drug treatment. Appellant's father, mother, and girlfriend all testified appellant deserved probation with drug treatment instead of prison. After finding appellant guilty, the trial court sentenced appellant to fourteen years in prison.
Appellant contends he did not receive effective assistance of counsel because counsel did not present testimony from Dr. Lisa Clayton, the psychiatrist who diagnosed appellant with psychotic disorder secondary to PCP usage. Appellant alleges that although he was eligible for deferred probation, the trial court declined to consider that disposition without the benefit of mitigating testimony from Clayton.
To show ineffective assistance of counsel, an appellant must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). This standard of proof of ineffective assistance applies to the punishment phase as well as to the trial stage of criminal proceedings. Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999).
Evaluations of effectiveness are based on "the totality of the representation." Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). Allegations of ineffectiveness must be firmly established by the record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). It is an appellant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett, 65 S.W.3d at 63. In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Id. If that opportunity has not been provided, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440.
A claim of ineffective assistance of counsel based on counsel's failure to call a witness fails in the absence of a showing that such witness was available to testify and the defendant would have benefitted from their testimony. Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004). Here, appellant has not made such a showing. The record reflects that on May 9, 2014, the trial court ordered Clayton to perform a mental health examination on appellant to determine his competency. Clayton sent her evaluation to the trial court on May 24, 2014. She concluded appellant was mentally competent to stand trial on the charges pending against him, and that he had a "mental diagnosis of psychotic disorder secondary to PCP usage." At the punishment hearing, appellant's counsel presented witness testimony from appellant's father, mother, and girlfriend, and asked the trial court to take judicial notice of the entire file and presentence investigation report. The record does not reflect Clayton was available to testify, that her testimony would be different from her written report, or that appellant would have benefitted from her testimony. See Ex parte White, 160 S.W.3d at 52.
Further, although appellant filed a motion for new trial, trial counsel did not have an opportunity to explain himself in the trial court and we cannot determine from this record counsel's strategy in conducting appellant's defense.. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 391, 392 (Tex. Crim. App. 2005). We conclude appellant has not met his burden of showing that trial counsel was ineffective. See Thompson, 9 S.W.3d at 812. We overrule appellant's sole issue.
We affirm the trial court's judgment. Do Not Publish
TEX. R. APP. P. 47
150347F.U05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
JUDGMENT
Appeal from the 195th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F13-47079-N).
Opinion delivered by Justice Francis, Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the trial court's judgment is AFFIRMED.
Judgment entered January 27, 2016.