Opinion
NO. 01-18-00259-CR
08-01-2019
MICHAEL RESHKOVSKY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas
Trial Court Case No. 1480699
MEMORANDUM OPINION
Michael Reshkovsky appeals the trial court's denial of his motion for new trial based on ineffective assistance of counsel. We affirm.
Background
In 2016, Reshkovsky pleaded guilty to robbery, and the court deferred adjudication of his guilt for five years while he served community supervision. In 2017, the State filed a motion to adjudicate guilt, alleging that Reshkovsky had robbed Hieu Tran at gunpoint in a store parking lot. He pleaded "not true" to the allegation, and the court held a hearing. At the hearing, Tran and the responding officer testified. Tran testified that he was walking out of a store with his parents when Reshkovsky pulled up in a car and asked for directions. Reshkovsky then showed him a gun and demanded his cell phone. Tran gave him the cell phone and went inside the store for help. The responding officer testified that the cell phone was found at Reshkovsky's house moments after the incident. When the officer arrived, the car Tran had described was in Reshkovsky's driveway. When the officer and Reshkovsky returned to the parking lot, Tran identified Reshkovsky as the person who had robbed him. The defense did not put on any witnesses or offer any evidence. The court found that Reshkovsky had violated the conditions of his community supervision by committing another offense, adjudicated him guilty of the original offense, and sentenced him to 18 years' imprisonment.
Reshkovsky filed a motion for new trial based on ineffective assistance of counsel. He alleged that his counsel was ineffective for failing to seek out and present mitigating evidence. After a hearing, the court denied the motion. Reshkovsky appealed.
Ineffective Assistance of Counsel
In his sole issue, Reshkovsky contends that the trial court abused its discretion in denying his motion for new trial based on ineffective assistance of counsel. He argues that his counsel was ineffective for failing to pursue information related to a 2013 incident in which Reshkovsky was sexually assaulted by a teacher, for failing to seek an independent psychological evaluation once he was aware of the assault, and for failing to present character witnesses who could attest to his behavior before and after the assault. He argues that had this information been presented to the court, he would have received a lighter sentence.
Reshkovsky submitted to an independent psychological examination before the hearing on his motion for new trial, and the report was admitted into evidence during the hearing. He also included records related to the sexual assault and affidavits from trial counsel, family members, and friends. His trial counsel testified at the hearing, and appellate counsel described the affidavits in detail for the court. The same judge who adjudicated Reshkovsky's guilt heard and denied the motion for new trial.
A. Standard of Review
We review a trial court's ruling on a motion for new trial after a hearing under an abuse of discretion standard. Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Biagas, 177 S.W.3d at 170. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support its ruling. Webb, 232 S.W.3d at 112.
We evaluate claims of ineffective assistance of counsel under the analytical framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, an appellant must show both 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. Id. at 688, 694; Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). Strickland defines reasonable probability as a "probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.
In reviewing whether trial counsel conducted an adequate investigation for potential mitigating evidence, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Reshkovsky's background was reasonable. See Goody v. State, 433 S.W.3d 74, 81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. Counsel can make a reasonable decision to forgo presentation of mitigating evidence only after evaluating available testimony and determining that it would not be helpful. See Goody, 433 S.W.3d at 81-82 (quoting Wiggins v. Smith, 539 U.S. 510, 533 (2003)). An attorney's decision not to investigate is given a "heavy measure of deference" and assessed in light of all circumstances to determine whether reasonable professional judgment would support the decision. Id.
In addition to demonstrating that counsel's performance was deficient, the appellant must also show that a reasonable probability exists that the factfinder's assessment of punishment would have been less severe in the absence of the deficient performance. Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). We accord "almost total deference to a trial court's findings of historical fact as well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor." Riley v. State, 378 S.W.3d 453, 456 (Tex. Crim. App. 2012) overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). When the trial judge who presided over a motion for new trial also presided over the trial itself, we presume that the judge knew how evidence admitted at the motion for new trial would have affected his ruling on punishment. See Smith v. State, 286 S.W.3d 333, 344-45 (Tex. Crim. App. 2009); Goody, 433 S.W.3d at 81.
B. Analysis
We need not reach the question of whether trial counsel erred because Reshkovsky has not established prejudice. See Strickland, 466 U.S. at 694. The same judge who presided over Reshkovsky's adjudication hearing and levied punishment heard his motion for new trial. All of the documents which Reshkovsky's trial counsel purportedly should have discovered were included in the record at the motion for new trial. At the hearing, Reshkovsky's trial counsel testified, and his appellate counsel discussed the exhibits in detail. We note that Reshkovsky's new trial evidence consisted of sworn declarations from family and friends. However, a trial court is under no obligation to accept as true testimony, even if unrebutted, offered at a hearing on a motion for new trial. See Gaston v. State, 136 S.W.3d 315, 322 (Tex. App.—Houston [1st Dist.] 2004, pet. dism'd). We presume from the trial court's denial of the motion that the documents and testimony, even if discovered, would not have affected the court's decision on sentencing. See Smith, 286 S.W.3d at 344-45; Goody, 433 S.W.3d at 81. We hold that Reshkovsky has failed to show that he was prejudiced by his attorney's failure to produce the documents or witnesses at his punishment hearing. We overrule his sole issue.
See Glenn v. State, No. 01-13-00640-CR, 2015 WL 831995, at *4 (Tex. App.—Houston [1st Dist.] Feb. 26, 2015, pet. ref'd) (mem. op., not designated for publication); see also Guevara v. State, No. 14-16-00701-CR, 2018 WL 771218, at *10 (Tex. App.—Houston [14th Dist.] Feb. 8, 2018, pet. ref'd) (mem. op., not designated for publication); Potts v. State, No. 14-10-01172-CR, 2012 WL 13802380, at *1 (Tex. App.—Houston [14th Dist.] Apr. 19, 2012, no pet.) (mem. op., not designated for publication); Arriaga v. State, 335 S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice Panel consists of Justices Keyes, Kelly, and Goodman. Do not publish. TEX. R. APP. P. 47.2(b).