Opinion
No. 06-01-00206-CR.
July 10, 2003.
July 31, 2003. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 01-F-0080-202.
Before Morriss, C.J., Ross and Carter, JJ.
MEMORANDUM OPINION
Paul Anthony Rodriguez appeals his conviction by a jury for the murder of Oscar Ramirez. The jury found the enhancement allegations true and assessed a sentence of life imprisonment. Approximately six months after a motion for new trial and notice of appeal were filed, Rodriguez expressed a wish to raise the issue of ineffective assistance of counsel. The trial court allowed trial counsel to withdraw and appointed new counsel. The sole issue raised on appeal is ineffective assistance of counsel. On April 12, 2000, Rodriguez and Ramirez were cell mates while incarcerated in the Barry Telford Unit of the Institutional Division of the Texas Department of Criminal Justice in New Boston, Texas. A physical altercation developed which appeared to be a normal fistfight. After the altercation ended, Rodriguez returned to his cell and closed the door. Ramirez headed toward the door, but collapsed in front of his cell. When medical personnel arrived, they discovered a great deal of blood had pooled under Ramirez. Subsequent inquiry revealed that Ramirez had been stabbed in the neck, lung, and chest wall. Despite medical attention, Ramirez died of his injuries. A search of the area resulted in the discovery of a shank, a prison-made weapon, on the floor outside Rodriguez' cell. Rodriguez was convicted of murder. Following the jury's assessment of punishment, the trial court sentenced Rodriguez to life imprisonment, to be served consecutively to his current sentence. As his sole point of error, Rodriguez contends he was denied effective assistance of counsel at trial. Rodriguez asserts his trial counsel was ineffective because she: 1) offended potential jurors at voir dire, 2) failed to properly subpoena two defense witnesses, 3) failed to present witnesses or make proper arguments during the punishment hearing, and 4) failed to allege ineffective assistance of trial in her motion for new trial. Both the United States and Texas Constitutions confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). To satisfy the deficiency prong of the test, Rodriguez must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. There is a strong presumption that counsel's performance was adequate. Id. The reason for this assumption is that the counsel at trial is better positioned to judge matters of strategy than an appellate court reviewing a cold record. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there, in fact, is no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. Further, ineffective assistance of counsel claims "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Rodriguez contends trial counsel's performance amounted to ineffective assistance of counsel during voir dire. His contention is based on two alleged deficiencies: trial counsel attacked the prosecutor, and she offended potential jurors. Rodriguez argues that trial counsel erred in attacking the prosecutor, which drew an objection and an instruction regarding proper voir dire. At best, this argument concerns a difference of opinion as to trial strategy. Her attack was not a vicious unsubstantiated personal attack, but rather an argument that the prosecutor did not want anyone on the jury who is in a "helping profession." Her argument is clearly motivated by professional reasons. She desired to alienate the prosecutor in the eyes of the jury with his method of selecting jurors. This Court should not consider the wisdom of such a strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835. Next, Rodriguez argues his trial counsel offended prospective jurors. During voir dire, trial counsel referred to her client as "Mr. Ramirez," which is the name of the victim, not her client. One of the jurors asked her, "Which one are you speaking for?" Trial counsel responded she did not understand why that mattered. The juror responded he thought the other attorney represented the State. Trial counsel countered with, "You're the State, I am the State. I am here to protect anyone who is accused of a crime from the power and majesty of the State. I'm trying to understand why you're concerned about a name." Another juror later approached the trial court outside of the jury panel's hearing and told it that "this sarcasm and all of this would turn me completely away from this attorney." Neither potential juror, however, was selected for the jury. Rodriguez argues that such "outrageous and totally unreasonable behavior" of trial counsel had a significant impact on the jury, as evidenced by the effect on these two potential jurors. The State contends trial counsel simply misspoke and mixed up the names of the victim and her client, an easy mistake to make. Further, the State argues trial counsel became embarrassed and tried to minimize her mistake. The State argues that such an understandable error does not constitute deficient performance and places an impossibly high standard of "human infallibility upon trial attorneys." Further, the State argues that the disgust the potential juror expressed toward trial counsel represents nothing more than personal dislike and does not constitute deficient performance. There is no requirement that trial counsel be liked by a jury. Trial counsel may have been attempting to get the juror to show bias or other cause to be struck. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002) (counsel's failure to object to the State's challenges for cause was not ineffective assistance). Since there is the possibility that trial counsel's performance during voir dire may have been motivated by plausible professional reasons, it was not deficient. Next, Rodriguez contends trial counsel was ineffective because she failed to subpoena two potential defense witnesses. Trial counsel claimed she had relied on the witnesses, Lieutenant Gooden and Major Melvin, testifying at the trial because they were on the State's witness list. The State contends she was able to present the evidence she wanted from these witnesses by recalling another State's witness, Sergeant Susan Thomas. However, the record does not contain any evidence of the substance of these witnesses' testimony or of the importance of these witnesses to Rodriguez' case. Direct appeal is a poor vehicle to bring an ineffective assistance of counsel claim. Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. Another way to develop a proper record is through a hearing in a habeas corpus collateral attack. See generally Tex. Code Crim. Proc. Ann. arts. 11.01-11.64 (Vernon 1992 Supp. 2003). The trial record does not support Rodriguez' argument that failure to call two potential witnesses resulted in ineffective assistance of counsel. See Holland v. State, 761 S.W.2d 307, 321 (Tex.Crim.App. 1988) (the record must support appellant's claims of ineffective assistance). Therefore, based on the evidence presented, failure to subpoena two defense witnesses fails to overcome the presumption of effective assistance of counsel. Third, Rodriguez argues that trial counsel's performance at the punishment phase amounted to ineffective assistance of counsel. Under current Texas law, the Strickland standard applies at punishment as well. See Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). Rodriguez contends that trial counsel's 1) opening statement, 2) failure to present witnesses, and 3) closing statement amounted to ineffective assistance of counsel. Rodriguez argues that the effect of his trial counsel's performance at punishment amounted to no counsel at all. After originally waiving her opening statement, trial counsel expressed a desire to make a statement. After conversing with the trial court and prosecutor concerning whether she was going to make a statement, trial counsel spontaneously said, "Oh, never mind," and did not to give an opening statement. Trial counsel's decision on whether to make an opening statement could be a matter of trial strategy. See Taylor v. State, 947 S.W.2d 698, 704 (Tex.App.-Fort Worth 1997, pet. ref'd); Standerford v. State, 928 S.W.2d 688, 697 (Tex.App.-Fort Worth 1996, no pet.). The fact that she changed her mind does not affect the status of the decision as a matter of trial strategy. Trial counsel may have decided, based on plausible professional reasons, at the spur of the moment, not to give an opening statement. Since trial counsel's decision may have been based on plausible trial strategy, Rodriguez has not overcome the presumption of effective assistance. Trial counsel presented no witnesses during the punishment phase of the trial. Rodriguez asserts that such a decision is ineffective assistance. The failure to call witnesses may be ineffective assistance of counsel. Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986) (failure to present available alibi witnesses deemed ineffective assistance of counsel). However, such witnesses must be shown to be available and to actually benefit the defense. Id.; Simms v. State, 848 S.W.2d 754, 758 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). The State argues that presentation of defense witnesses may have been detrimental to Rodriguez. The State had presented testimony Rodriguez had been convicted of three violent felonies and was a member of a prison gang. The State argues trial counsel could reasonably conclude that any defense witnesses would have been incredible and ineffective. We are not provided with any evidence that defense witnesses existed. Even if defense witnesses existed, "defense counsel could have reasonably determined that the potential benefit of additional witnesses or evidence was outweighed by the risk of unfavorable counter-testimony." Bone, 77 S.W.3d at 835. At best, Rodriguez' argument concerns a difference of opinion as to trial strategy. Because plausible professional reasons exist for not calling witnesses at the punishment phase, trial counsel's actions were not ineffective assistance of counsel. Trial counsel's final argument consisted of an explanation of parole, which was interrupted by an objection that was sustained, a request for fifteen years, and a plea to the jury not to fine Rodriguez. There are many reasons for a brief final argument. Ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835. Waiving the final argument at the punishment phase has been held to be acceptable trial strategy. Salinas v. State, 773 S.W.2d 779, 783 (Tex.App.-San Antonio 1989, pet. ref'd); see Ortiz v. State, 866 S.W.2d 312, 315 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (a short, incoherent final argument at punishment is not ineffective assistance of counsel). Since trial counsel's brief final argument may have been based on trial strategy, Rodriguez has not overcome the presumption of effective assistance of counsel. Lastly, Rodriguez argues trial counsel did not effectively represent him because she failed to allege ineffective assistance of counsel in her motion for new trial. Rodriguez contends trial counsel should have ascertained his desire to argue ineffective assistance of counsel earlier and withdrawn. Rodriguez argues that trial counsel is obligated to determine at the earliest possible moment whether his or her client desires to raise the issue of ineffective assistance of counsel and to withdraw if they so desire. Rodriguez fails to cite any caselaw which requires such a determination. The State argues that, from a practical standpoint, courts cannot expect an attorney to allege his or her own assistance was ineffective. In Oldham, when the defendant filed a pro se notice of appeal and appellate counsel was not appointed until after the deadline to file a motion for new trial, the Texas Court of Criminal Appeals refused to grant an out-of-time motion for new trial. Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App. 1998). The court held that, in the absence of evidence to the contrary, it is presumed trial counsel advised the defendant of the merits of a motion for new trial. Id. "When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected." Id. The court further held that the filing of a pro se notice of appeal is evidence the appellant in the case was "informed of at least some of her appellate rights," and the court would "presume she was adequately counseled unless the record affirmatively displays otherwise." Id.; see Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App. 2000). Rodriguez' trial counsel did file a motion for new trial, which indicates she informed him of at least some of his appellate rights. Since the record does not contain evidence trial counsel failed to discuss ineffective assistance of counsel with Rodriguez, we hold that Rodriguez has not overcome the presumption that counsel's performance was adequate. See Oldham, 977 S.W.2d at 363. Further, as the State asserts and Rodriguez concedes, claims of ineffective assistance of counsel must be evaluated based on the totality of the circumstances. Rodriguez contends, however, that the totality of the circumstances reveals his counsel was ineffective. This Court must be able to conclude that trial counsel's actions amounted to ineffective assistance of counsel based on the totality of the circumstances. "The right to 'reasonably effective assistance of counsel' does not guarantee errorless counsel, or counsel whose competency is to be judged by hindsight." Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Crim.App. 1993) (quoting Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App. 1983)). A single error renders counsel's performance ineffective only if it permeates the entirety of the representation. Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App. 1988). The Texas Court of Criminal Appeals has further explained that: Isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel's performance for examination. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). The record reveals trial counsel performed proficient cross-examinations and closing argument at the guilt/innocence phase of trial. She presented the jury with a viable argument that Rodriguez' actions were in self-defense and the prison had not adequately followed procedures. She also performed proficient cross-examinations at the punishment phase. None of the alleged errors asserted by Rodriguez appears to permeate the entirety of the representation. Based on the totality of the circumstances, trial counsel's performance was not ineffective assistance of counsel. The second prong of the ineffective assistance of counsel test is whether the defendant's trial was prejudiced by trial counsel's deficiency. A defendant does not meet this burden by merely showing that an error had some conceivable effect on the outcome of the trial. Strickland, 466 U.S. at 693. The defendant, though, is not required to show that the outcome was fundamentally unfair or unreliable. Williams v. Taylor, 529 U.S. 362, 393 (2000). The defendant must show a "reasonable probability" that, but for the error, the result of the trial would have been different. Strickland, 466 U.S. at 693. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. Because trial counsel's performance at trial was not deficient, there is no need to examine the second requirement of Strickland. Further, Rodriguez makes no showing in his brief of how the alleged deficient performance of trial counsel raises a reasonable probability that the result of the trial would have been different, other than alleging it is "reasonably probable that the result would have been different." In the absence of such a showing, we do not find that the trial court's judgment should be reversed due to ineffective assistance of counsel. Trial counsel's performance was not deficient based on the totality of her representation. Rodriguez has not shown a "reasonable probability" that the result of the trial would have been different. We affirm the trial court's judgment.
Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex.App.-Corpus Christi 1992, pet. ref'd, untimely filed). When a direct appeal has not provided an adequate record to evaluate a claim that might be substantiated through additional evidence gathered in a habeas proceeding, the court will not apply the doctrine that forbids raising a claim on habeas after it was rejected on appeal. Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App. 1997).
The Texas Court of Criminal Appeals has recognized that alleging ineffective assistance of counsel in a motion for new trial "is inherently unlikely if trial counsel remains counsel during the time required to file such a motion." Ex parte Graves, 70 S.W.3d 103, 125 (Tex.Crim.App. 2002) (quoting Torres, 943 S.W.2d at 475). Because of this shortcoming, "in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims." Graves, 70 S.W.3d at 125 (quoting Torres, 943 S.W.2d at 475).