Steward v. State

Full title: TOMMY LEE STEWARD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 12, 2005

No. 05-04-00543-CR (Tex. App. Aug. 12, 2005)

Opinion

No. 05-04-00543-CR

Opinion Filed August 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 86^th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 21423. Affirm.

Before Justices WHITTINGTON, FITZGERALD, and RICHTER.

MEMORANDUM OPINION

Opinion by Justice FITZGERALD.

Tommy Lee Steward appeals his conviction for possession of four or more grams, but less than 200 grams, of cocaine. The jury assessed his punishment at 60 years' confinement and a $2500 fine. In this Court, Steward complains that he was denied a continuance during trial to obtain the testimony of a material witness, that he was unable to consult privately with his attorney, and that his attorney provided ineffective assistance in a number of circumstances before and during trial. The facts are known to the parties and we do not recite them in detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm.

Continuance During Trial

Steward complains in his first issue that the trial court denied his request for a recess or continuance during trial. After the State rested, counsel for Steward informed the court that the sheriff's department had not served a subpoena issued at Steward's request. Steward requested time to locate the witness, explaining only that:

He's a party who was present at the time of the offense. He has knowledge of material facts and he's necessary to the defense of this case.

The record does not set forth what "material facts" the absent witness knew or how those facts were "necessary to the defense" of Steward's case. The trial court may grant a motion for continuance or postponement after the trial has begun if the court is satisfied "that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had." Tex. Code Crim. Pro. art. 29.13 (Vernon 1989). The motion is addressed to the sound discretion of the trial court. Hightower v. State, 629 S.W.2d 920, 926 (Tex.Crim.App. 1981). In this case, Steward offered only conclusory reasons for the requested postponement; he made no showing that he could not have a fair trial absent the testimony of the missing witness. We find no abuse of discretion in the denial of the motion. We overrule Steward's first issue.

Private Consultation With Attorney

In his second issue, Steward argues he was denied his right to consult privately with his attorney in preparation for trial. The right to be represented by counsel includes the right to consult in private with one's attorney. See Tex. Code Crim. Pro. art. 1.501(a) (Vernon 2005). In a pre-trial hearing, Steward's counsel complained that the jail facilities had been insufficient to provide this private consultation with Steward. At the hearing, testimony was elicited from jail personnel concerning the presence of video and/or audio recording equipment in some of the jail's rooms. Steward's counsel chose to meet with his client in the "female visitation" room, deeming it to provide the most privacy. However, Steward complains that even this room was unacceptable because it contains a glass wall dividing it from the "picket," an area in which jail personnel sometimes conduct business. The record indicates jail personnel offered to cover the glass wall with paper to assure privacy; Steward's attorney did not accept that offer. The record includes no testimony tending to show that jail personnel ever attempted to eavesdrop on Steward's consultation with his attorney. To the contrary, the chief deputy of the sheriff's department testified he did not believe conversations in the female visitation room could be overheard by officers in the picket. Steward has not pointed us to any authority, nor do we find any, requiring attorney-client meeting places to meet specific requirements. The record of the hearing contains no evidence that Steward's consultation was not in fact private. Accordingly, we find no violation of Steward's right to counsel, and we overrule his second issue.

Ineffective Assistance of Counsel

Steward's third through sixth issues allege ineffective assistance of counsel before and during trial. To prevail on an ineffective assistance of counsel claim, Steward must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). In his motion for new trial, Steward complained generally of ineffective assistance of counsel, but he did not offer evidence of any particular complaint concerning his counsel's performance.

Counsel's Pretrial Performance

In his third issue, Steward alleges his attorney failed to prepare properly for trial. In his fourth issue, Steward complains that his attorney rejected a plea offer without consulting with him. Steward's discussion of these issues in his brief begins with the following notice to this Court:

With respect to Issues 3 and 4, the facts posited are supported by the appellant's sworn affidavit, presented as Exhibit A. The record is understandably void regarding these facts.

We agree that the record is "void" concerning the allegations made in the affidavit attached to Steward's brief. The affidavit itself is not part of the appellate record, and the allegations made therein do not appear anywhere else in the record. 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. Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004). We may not consider Steward's affidavit. The defendant claiming ineffective assistance of counsel must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) In this case, we are left with a silent record concerning the motivation behind counsel's pretrial action or inaction; we cannot know whether it resulted from strategic design or negligent conduct. We conclude Steward has not met his burden of demonstrating by a preponderance of evidence that counsel's performance was deficient. See id. Accordingly, we overrule Steward's third and fourth issues.

Failure to Challenge Venire Composition and State's Peremptory Strikes

In his fifth issue, Steward complains of his attorney's failure to raise a Batson challenge¹ when the State used peremptory challenges to strike two black potential jurors. Steward argues the jurors stricken by the State were the only black jurors that realistically could have been seated on the jury.² Thus, according to Steward, a prima facie case for a Batson challenged was established. However, the mere failure to preserve Batson error is not sufficient to support a finding of ineffective assistance. The court of criminal appeals has instructed that there must be some evidence to establish that counsel's failure to challenge the State's strikes was deficient performance and that the defendant was prejudiced when the alleged Batson error was not preserved. See Batiste v. State, 888 S.W.2d 9, 15 (Tex.Crim.App. 1994). Steward offered no such evidence. Accordingly, there is no evidence to show that counsel's failure to object was not based on his sound professional judgment or that a Batson violation, if any, prejudiced Steward's trial. There simply is no evidence to overcome the presumption that counsel performed adequately. See Tijerina v. State, 921 S.W.2d 287, 289 (Tex.App.-Corpus Christi 1996, no pet.). We overrule Steward's fifth issue. In his sixth and final issue, Steward complains that his attorney failed to object to the racial composition of his venire panel as a whole because the panel did not reflect the racial composition of Kaufman County.³ Steward bases his argument on data and calculations that are attached to his brief but are not part of the appellate record. We may not consider this evidence. See Whitehead, 130 S.W.3d at 872. Because the record does not affirmatively demonstrate the alleged ineffectiveness of counsel, Steward has not overcome the presumption of reasonable assistance. See Tijerina, 921 S.W.2d at 287. We overrule Steward's sixth issue.

Conclusion

We have decided each of Steward's issues against him. Accordingly, we affirm the judgment of the trial court.