No. 14-03-00074-CR.
Memorandum Opinion filed February 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 896,436. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
WANDA McKEE FOWLER, Justice.
Appellant pleaded guilty to aggravated assault and the trial court assessed punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant contends he was denied effective assistance of counsel because (1) counsel failed to request appointment of a defense mental health expert and (2) counsel failed to present testimony or evidence from appellant's mental health counseling or his treating physician. We affirm.
FACTUAL BACKGROUND
On December 11, 2001, appellant shot his wife as she was sleeping. He hid the rifle he used in the attic and left for work. Appellant's wife survived the shooting and was unaware that appellant was the person who had shot her. She called him just before he arrived at work and he returned home. The police had already arrived at appellant's home by the time he returned. Appellant told the investigating deputies his rifle was missing, but one of the deputies found it in the attic. Appellant later confessed and signed a statement indicating he tried to kill his wife in order to "end her suffering of not being able to produce children." ANALYSIS
In two issues, appellant contends he was denied effective assistance of counsel because (1) counsel failed to request appointment of a defense mental health expert and (2) counsel failed to present testimony or evidence from appellant's mental health counseling or his treating physician. To prove ineffective assistance of counsel, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 688, 694 (1984); Rodriquez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App. 1995). When reviewing a claim of ineffective assistance of counsel, we must give much deference to trial counsel and presume counsel made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant bears the burden to show counsel's ineffectiveness by a preponderance of the evidence, and allegations of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131 (2000). Except in rare cases, a claim of ineffective assistance must be brought by application for writ of habeas corpus rather than direct appeal; this is to develop the facts and allow trial counsel to explain his actions. See Robinson v. State, 16 S.W.3d 808, 813 (Tex.Crim.App. 2000); see also Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (holding that generally, the trial court record is inadequate to properly evaluate ineffective assistance of counsel claims); Beck v. State, 976 S.W.2d 265, 266 (Tex.App.-Amarillo 1998, pet. ref'd) (holding that a trial record only is inadequate for ineffective assistance of counsel claims). I. Failure to Request a Defense Mental Health Expert
In his first issue, appellant contends he was denied effective assistance of counsel because counsel failed to request appointment of a defense mental health expert. Although counsel filed motions for psychiatric examinations to determine appellant's competency and sanity, the court-appointed expert declared appellant to be both competent and sane and counsel did not subsequently request appointment of a defense mental health expert. A defendant is entitled to the assistance of a mental health expert when the defendant's sanity is likely to be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 74 (1985). A neutral expert does not satisfy that requirement; the expert must assist the defendant in evaluating, perparing, and presenting his case. De Freece v. State, 848 S.W.2d 150, 159 (Tex.Crim.App. 1993). A neutral expert may, however, "serve an important function in identifying whether sanity will be a significant factor at trial." Id. Appellant has not met his burden of demonstrating his sanity was likely to be a significant factor at trial. The neutral expert determined that appellant was both competent and sane, and the record contains no evidence that appellant had a history of mental illness or that he exhibited behavior indicating a mental aberration. Appellant has failed to show that his sanity was likely to be a significant factor at trial. See Norton v. State, 930 S.W.2d 101, 111 (Tex.App.-Amarillo 1996, pet. ref'd); Knight v. State, 868 S.W.2d 21, 24 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Because appellant was not entitled to a defense mental health expert, Ake, 470 U.S. at 74, counsel was not ineffective for failing to request one. Appellant cites three cases in which appellate courts reversed because defense mental health experts were either not requested or were not provided. See Woods v. State, 59 S.W.3d 833, 838-39 (Tex.App.-Texarkana 2001), rev'd on other grounds, 108 S.W.3d 314 (Tex.Crim.App. 2003); In re R.D.B., 20 S.W.3d 255, 261 (Tex.App.-Texarkana 2000, no pet.); In re J.E.H., 972 S.W.2d 928, 929 (Tex.App.-Beaumont 1998, pet. denied). All three of those cases are distinguishable, however, because in each of them there was evidence indicating that the defendant's mental health was likely to be a significant factor at trial. In Woods, the defendant had been thrown from a window and struck his head on a rock as a child, he had a history of commitment to mental health hospitals since the age of thirteen, and there was evidence he heard voices and suffered hallucinations. Woods, 59 S.W.3d at 838. In R.D.B., the defendant had a frontal lobe brain injury, he was taking medication to control a seizure disorder resulting from the injury, and a psychiatric evaluation indicated the injury may have contributed to his behavior. R.D.B., 20 S.W.3d at 256-57. In J.E.H., the State indicated it intended to offer evidence from other mental health experts and conceded mental evidence would be relevant. J.E.H., 972 S.W.2d at 930. No similar evidence exists in this case. Further, even had defendant been entitled to a defense mental health expert, there is no evidence of counsel's strategy in failing to request one. It is a reasonable conclusion that the results of the court-appointed expert's report could have influenced counsel not to pursue a defense mental health expert. See Easley v. State, 978 S.W.2d 244, 250-51 (Tex.App.-Texarkana 1998, pet. ref'd). Absent evidence of counsel's reasoning, we cannot say this decision denied appellant reasonably effective counsel. See Thompson, 9 S.W.3d at 813. Appellant's first issue is overruled. II. Failure to Present Mental Health Testimony or Evidence
In his second issue, appellant contends he was denied effective assistance of counsel because counsel failed to present any testimony or evidence from appellant's mental health counseling or from his treating physician. The presentence report mentions that appellant attended counseling after the shooting, but counsel presented no evidence of the nature of the counseling or its frequency at the sentencing hearing. As appellant acknowledges in his brief, however, "the record is silent as to counsel's trial strategy in not presenting such evidence, or even whether such evidence would have been beneficial." We cannot denounce counsel as ineffective absent some evidence of his strategy. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). Nor can we determine there is a reasonable probability the outcome would have been different absent some indication the evidence would have been beneficial to appellant. Appellant has thus failed to meet either prong of the Strickland test. See Strickland v. Washington, 466 U.S. at 694. Appellant's second issue is overruled. The judgment of the trial court is affirmed.