Opinion
No. 10-05-00346-CR.
Opinion delivered and filed December 6, 2006. DO NOT PUBLISH.
Appeal From the 40th District Court, Ellis County, Texas, Trial Court No. 29289CR.
Before Chief Justice Gray, Justice VANCE, and Justice REYNA. (Justice Vance concurs in the judgment)
MEMORANDUM OPINION
Walker appeals her conviction for possession of 5.67 grams of methamphetamine with intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (d) (Vernon 2003); see also id. § 481.102(6) (Vernon Supp. 2006). We affirm. EFFECTIVE ASSISTANCE OF COUNSEL. In Walker's first issue, she contends that her trial counsel failed to render the effective assistance of counsel. In Walker's second issue, she contends that the trial court erred in overruling Walker's motion for new trial to the extent that it alleged ineffective assistance. "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. CONST. amend. VI; see Rompilla v. Beard, 545 U.S. 374, 380 (2005); Strickland v. Washington, 466 U.S. 668 (1984). "Ineffective assistance under Strickland [ v. Washington] is deficient performance by counsel resulting in prejudice, with performance being measured against an 'objective standard of reasonableness, "under prevailing professional norms.'" Rompilla at 380 (quoting Strickland at 687, 688). "[T]o establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland at 694); see Rompilla at 390. "[C]ounsel is 'strongly presumed' to make decisions in the exercise of professional judgment." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland, 466 U.S. at 690). "That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court 'may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.'" Id. at 5-6 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)) (internal citation omitted). "A Strickland claim must be 'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)); accord Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). "In the absence of anything in the record affirmatively demonstrating otherwise, we presume that . . . counsel made a reasonable and strategic decision. . . ." Salinas at 740.
Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record.Goodspeed at 392 (internal footnotes omitted); see Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 689; Thompson at 814. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)); accord Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). Walker makes seven allegations of ineffective assistance. Walker points largely to testimony at the hearing on her motion for new trial. Walker concedes that there was "overwhelming evidence of guilt." (Br. at 14.) Mitigating Evidence. First, Walker argues that trial counsel failed to present mitigating evidence at the punishment stage of trial. Walker points to testimony by members of her family to their willingness to testify to her good character. The State points to the testimony of trial counsel to the effect that Walker told counsel that Walker did not want to call the family to testify. Walker concedes that she was not sure whether her mother's health would allow her mother to testify. Walker's son did testify in the guilt-or-innocence stage of trial, and trial counsel testified that she decided not to call him in the punishment stage because he did not have additional valuable testimony. Walker does not establish that trial counsel failed to render effective assistance of counsel in not presenting other mitigating evidence. Discovery. Second, Walker argues that trial counsel failed to view and evaluate the evidence before trial. Walker complains primarily concerning photographs of Walker and her personal effects at the time of her arrest. The existence of the photographs came to light during trial, and they were not introduced at trial. Walker complains, for example, of trial counsel's not scheduling a discovery conference with the State. Trial counsel testified that she relied on information from Walker concerning the evidence in Walker's possession at the time of arrest. Walker concedes that the photographs and other evidence were "consistent with the testimony and evidence presented" at trial. (Br. at 25.) Walker points to her trial counsel's conclusory testimony that "had she viewed pretrial evidence, it would have changed her strategy, it would have changed her recommendations to Appellant, and it would definitely have made a difference." ( Id. (citing [3 Supp.] R.R. 17-19, 53-54).) Walker concedes that the photographs would have been cumulative of the trial evidence, and does not suggest that the other evidence was objectionable. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App. 2002). Walker does not establish a reasonable probability that the result of the trial would have been different had trial counsel examined the evidence before trial. Independent Testing. Third, Walker argues that trial counsel failed to request independent testing of the drug evidence. Walker argues that her "trial counsel's strategy was to show that the drug evidence had been tampered with." (Br. at 26.) Walker's theory at trial was that she had been in possession of more methamphetamine at the time of her arrest than the State's evidence showed. Walker argues:
Had counsel viewed the drug evidence and requested independent testing, there is a reasonable probability the result of the proceeding would have been different because she would have been able to report those findings to adequately advise Appellant as to the success of a defense arguing that the evidence had been tampered with and she would have known pre-trial what the true amount of the drug was so that she could modify her trial strategy or in the event that independent testing supported the theory that tampering had occurred, she would have expert testimony at trial that would buttress her argument and more likely than not, sway the jury . . . .(Br. at 27.) Walker does not show a reasonable probability that, had counsel requested independent testing, the result of the trial would have been different. See Bates v. State, 88 S.W.3d 724, 729 (Tex.App.-Tyler 2002, pet. ref'd). Walker does not suggest a reasonable probability that the results of independent testing would have been different from that by the Texas Department of Public Safety. Nor does Walker suggest how independent testing of the methamphetamine submitted to the Department of Public Safety by local police officers would show tampering by those officers. Advice on Plea Bargain. Fourth, Walker argues that trial counsel failed to advise her adequately on accepting the State's plea bargain offer. Walker argues that counsel did not "advise [Walker] candidly about her chances at trial" and did "not advis[e] [Walker] that it would be in her best interests to accept a plea bargain offered by the State." (Br. at 29.) "[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case," including "whether to plead guilty." Jones v. Barnes, 463 U.S. 745, 751 (1983); accord Ex parte Wilson, 724 S.W.2d 72, 73-74 (Tex.Crim.App. 1987); State v. Williams, 83 S.W.3d 371, 373 n. 4 (Tex.App.-Corpus Christi 2002, no pet.); Fontnette v. State, 24 S.W.3d 647, 650 (Tex.App.-Beaumont 2000, pet. ref'd). There is "no duty on counsel's part to strongly advise [an] appellant to accept an offered sentence." Howard v. State, 894 S.W.2d 104, 110 (Tex.App.-Beaumont 1995, pet. ref'd) (emphasis in orig.); Jordan v. State, 852 S.W.2d 689, 692 (Tex.App.-Houston [14th Dist.] 1993) (emphasis in orig.), aff'd, 883 S.W.2d 664 (Tex.Crim.App. 1994). The State points to trial counsel's testimony to the effect that counsel "explained all the options to Ms. Walker." (3 [Supp.] R.R. 49.) Trial counsel testified that "on many occasions" she "advised [Walker] of the risks involved as to how the evidence w[ould] play out as to her — the chances of trial being successful." ( Id. 50.) Walker does not establish that trial counsel rendered deficient performance. Continuance. Fifth, Walker argues that trial counsel failed to request a continuance to find the photographs whose existence came to light during trial. Walker concedes that the "pictures were cumulative of the evidence presented at trial and were not exculpatory." (Br. at 32.) The State points out that trial counsel's strategy was to argue that the State was concealing the absent evidence. Walker does not establish a reasonable probability that the result of the trial would have been different had trial counsel moved for a continuance to locate the photographs. Advice on Range of Punishment. Sixth, Walker argues that trial counsel failed to advise her correctly on the range of punishment. Walker was charged with the first-degree felony of possession of a controlled substance with intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (d); id. § 481.102(6); TEX. PENAL CODE ANN. § 12.32 (Vernon 2003). Walker contends that the list of punishment ranges that counsel gave to Walker had the punishment range for second-degree felonies highlighted. See TEX. PENAL CODE ANN. § 12.33 (Vernon 2003). The State points to trial counsel's testimony that she correctly informed Walker of the range of punishment. Walker does not establish that trial counsel did not advise her accurately on the range of punishment. Motion to Suppress. Lastly, Walker argues that trial counsel failed to file a motion to suppress evidence. Walker complains of a video recording of her arrest. In order to prevail on a claim that counsel failed to render effective assistance by not filing a motion to suppress evidence, "the record on direct appeal must affirmatively prove [the] appellant's motion to suppress would have been granted." Edmond v. State, 116 S.W.3d 110, 112 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); accord Carroll v. State, 56 S.W.3d 644, 649 (Tex.App.-Waco 2001, pet. ref'd); see Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). "We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion." Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005), cert. denied, 127 S.Ct. 145 (2006). Walker argues:
The officer pulled Appellant over for a speeding violation. The officer detained Appellant for verification of identity and the license check came back as a good license with no warrants. At this point, unless the officer had specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity, Appellant should have been released for [sic] detention.(Br. at 35 (internal citations omitted) (citing Woods v. State, 956 S.W.2d 33 (Tex.Crim.App. 1997))); see also United States v. Arvizu, 534 U.S. 266, 273 (2002); Whren v. United States, 517 U.S. 806, 810 (1996). As the State points out, when the officer stopped Walker, Walker did not have a driver's license, and gave the officer a false name and date of birth. The license check to which Walker refers is that for the false information. The trial court would not have abused its discretion in finding that the officer detained Walker for investigation of the criminal offense of driving without a license. See TEX. TRANSP. CODE ANN. § § 521.021(a), 521.025 (Vernon 1999); Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004). "It is possible that counsel determined that filing a motion to suppress would have been frivolous." Robinson v. State, 22 S.W.3d 631, 636 (Tex.App.-Waco 2000, pet. ref'd). Walker does not establish that trial counsel rendered deficient performance in not filing a motion to suppress. Conclusion . Walker does not establish that trial counsel did not render the effective assistance of counsel. We overrule Walker's first issue. MOTION FOR NEW TRIAL. Next, we consider Walker's motion for new trial. "In our review of the trial court's order" ruling on a "motion for new trial, . . . we look to the grounds pleaded by the movant in the motion and determine whether any of these grounds provide a basis for granting the new trial." State v. Fury, 186 S.W.3d 67, 73 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Where "the challenge on appeal does not comport with the objection at trial, nothing is presented for review." Nichols v. State, 754 S.W.2d 185, 200 (Tex.Crim.App. 1988); see Swain, 181 S.W.3d at 367. Walker's motion for new trial alleged ineffective assistance only as follows:
Defendant is entitled to a new trial on the basis that the State denied Defendant access to discovery regarding pending criminal charges that were used against her during sentencing thereby denying Defendant effective representation . . . . Specifically, denial of discovery on pending, uncharged offenses consisting of Driving while intoxicated and possession of controlled substance, that were proven up at trial and used against her, did not allow her attorney to represent her effectively . . . .[sic] (1 C.R. 47) (ellipses added). Walker does not separately argue the trial court's overruling of Walker's motion for new trial in Walker's brief. Nor does Walker argue the discovery of extraneous offense evidence in her brief. Conclusion . Walker's second issue presents nothing for review. We overrule Walker's second issue. CONCLUSION. Having overruled Walker's issues, we affirm. Affirmed.