Opinion
NO. 02-17-00044-CR
01-11-2018
KRISTOPHER ANDERSON APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR13217 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
On November 26, 2014, at around 8:30 p.m., Appellant Kristopher Anderson ran a stop sign, causing Deputy Spencer Batchelor of the Hood County Sheriff's Office—who was in a white police vehicle bearing the words "Sheriff, "Hood County," and "911" in large, bold lettering, and equipped with a light bar on top—to initiate a traffic stop. After the deputy activated his vehicle's red and blue lights, Anderson initially began to pull over to stop but then apparently changed his mind, opting instead to flee.
Anderson then led Deputy Batchelor—and five other patrol units—on a high-speed chase through several residential neighborhoods. After the police deployed their last set of spike strips, Anderson ran a red light in the intersection of East 377 and Old Cleburne Road, where he crashed into a vehicle occupied by Constance Meadows, a five-and-a-half-month-pregnant passenger, and finally stopped.
Meadows was the front-seat passenger and her boyfriend was the driver. The two were en route from Granbury to Burleson to visit her aunt for Thanksgiving. According to Meadows, they were about halfway through the intersection when her brother, who was in the back seat, yelled, "Watch out!" As she looked to her right, she saw a vehicle rapidly approaching them. Meadows described an explosive noise when they collided, stating, "[I]t was just literally like a big bomb had just set off like right there."
After Meadows's boyfriend directed the officers to her, the officers checked her unborn daughter's heartbeat, which was very faint. They advised her to go to the hospital, where she stayed overnight. Meadows did not feel any movement from her daughter until the next day, and when the hospital released her the next morning, they advised her to check with her obstetrician for a follow-up. Although her due date had been mid-February, a week after the crash, she started throwing up, and her boyfriend took her to the hospital in Brownwood, where they lived. Because the hospital did not have the proper equipment for a premature baby, she was CareFlited to a hospital in Austin where she gave birth.
Two years later, a jury convicted Anderson of evading arrest in a motor vehicle while using a deadly weapon (a vehicle), a third-degree felony, and assessed his punishment at thirty years' confinement. See Tex. Penal Code Ann. § 12.34 (West 2011) (stating that third-degree felony punishment range is 2 to 10 years and up to a $10,000 fine), § 12.42(d) (West Supp. 2017) (enhancing punishment range to 25 to 99 years for felony offense when defendant has previously been convicted of two felony offenses), § 38.04 (West 2016) (describing evading-arrest offense).
The jury found that Anderson had previously been convicted of felony driving while intoxicated in 2010 and felony failure to stop and render aid in 2004.
In two points, Anderson argues that he received ineffective assistance of counsel and that the trial court should have granted his counsel's motion to withdraw prior to trial. We affirm.
II. Ineffective Assistance
In his attempt to demonstrate that he received ineffective assistance, Anderson takes issue with three specific acts or omissions by his trial counsel: failure to make an opening statement, failure to cross-examine some of the State's witnesses, and refusal to follow Anderson's instructions.
A. Standard of Review
To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his counsel's representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). An ineffective-assistance claim must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim because the record is generally undeveloped. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012); Thompson, 9 S.W.3d at 813-14. In evaluating the effectiveness of counsel under the deficient-performance prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307-08.
Ineffective assistance claims are usually best addressed by a postconviction writ of habeas corpus. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); see Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997).
It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record or when counsel's reasons for failing to do something do not appear in the record. Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield, 363 S.W.3d at 593. If trial counsel is not given that opportunity, we should not conclude that counsel's performance was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Nava, 415 S.W.3d at 308.
The prejudice prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must show there is a reasonable probability that, without the deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696, 104 S. Ct. at 2069.
B. Application
An appellant claiming ineffective assistance of counsel at trial must identify the allegedly erroneous acts and omissions of counsel. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper v. State, 333 S.W.3d 859, 867 (Tex. App.—Fort Worth 2010, pet. ref'd). The appellate court then determines whether, in light of all the circumstances, these identified acts or omissions were outside the wide range of competent assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper, 333 S.W.3d at 867.
Anderson complains that he received ineffective assistance when his trial counsel (1) failed to ask reasonable questions during the cross-examination of several of the State's witnesses, (2) made no opening statement, and (3) refused to follow Anderson's express wishes. He asserts that the goal of the trial was to convince the jury that he did not use a deadly weapon in the commission of the offense but that trial counsel's errors "made this result not only unlikely, but so undermined the purpose of the adversarial process that the jury's verdict and the trial did not provide [him] a just result."
The State responds that Anderson cannot establish either element of the Strickland test because plausible strategic or tactical reasons existed for waiving an opening statement and for counsel's cross-examination decisions. Furthermore, the State argues that because Anderson elected not to call his trial attorney to testify at the hearing on his motion for new trial, Anderson failed to offer evidence of counsel's reasoning sufficient to rebut the presumption that he acted reasonably. The State also points out that the record does not support the contention that Anderson was coerced by his attorney into pleading a certain way and that Anderson cannot show by a preponderance of the evidence a reasonable probability that the proceeding's result would have been different but for his trial counsel's actions.
1. Opening Statement
Anderson states that by failing to make an opening statement, his counsel allowed the State to create the only evidentiary framework for the jury.
In his opening statement, the prosecutor told the jury that the evidence would show that on November 26, 2014, at around 8:30 p.m., Deputy Batchelor was in uniform and on patrol in a marked patrol unit, saw Anderson fail to stop at a stop sign, caught up with Anderson's vehicle, turned on his overhead flashing lights, and attempted to initiate a traffic stop. Anderson then revved his engine and fled through residential neighborhoods at 80 and 90 miles per hour before T-boning a car carrying a pregnant woman.
Anderson's attorney reserved his opening statement, but after Meadows, the State's last witness, testified, he elected not to make an opening statement. Instead, he rested for the defense without calling any witnesses or offering any evidence.
In his closing argument, Anderson's attorney acknowledged that there was not much to debate over whether Anderson had evaded arrest and instead focused on whether the vehicle was used as a deadly weapon. He argued that the deputies' use of a spike strip that punctured the tires on Anderson's vehicle caused Anderson to lose control of his vehicle, and he reminded the jury that Deputy Batchelor had testified that he would have stopped the chase if there had been a risk of death or serious bodily injury. He also asked the jury to watch the dashcam video again and to notice that there were not many cars on the street and that Anderson went out of his way to avoid hitting the ones that were present. And he argued that the police should not have used a spike strip near an intersection in violation of police procedures.
Although Anderson did not call trial counsel to testify about his strategy, the record shows that after the State put on its evidence, his attorney decided to attack the State's evidence by arguing failure of proof with regard to the deadly-weapon allegation. Because his attorney's strategy was to focus the jury on the lack of evidence—as opposed to proof offered by the defense—an opening statement outlining what Anderson intended to show the jury would have served little purpose and, therefore, his foregoing of such could have been reasonable 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.); see also Bernal v. State, No. 08-14-00158-CR, 2017 WL 1684725, at *4 (Tex. App.—El Paso May 3, 2017, no pet.) (not designated for publication) (observing that defense counsel's decision to reserve an opening statement and then to proceed directly to closing argument after the State rests "is not unique"); Darkins v. State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ("Counsel's failure to make an opening statement was not conduct 'so outrageous that no competent attorney would have engaged in it.'"). Furthermore, the law recognizes that choosing whether or not to make an opening statement is an "inherently tactical decision[] that need[s] to be made based on the way a trial is unfolding, the trial strategy employed, the experience and judgment of the defense attorney, and other factors." Taylor, 947 S.W.2d at 704; see Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El Paso 1997, no pet.) ("Few matters during a criminal trial could be more imbued with strategic implications than the exercise of this option."); Standerford, 928 S.W.2d at 697 (observing that making an opening statement gives the State a preview of the defense's strategy and is clearly a tactical decision). We overrule this portion of Anderson's first point.
2. Cross-examination
Anderson complains that his counsel did not cross-examine either Meadows or Deputy Paul Knight and that he failed to sufficiently question Deputy Batchelor. With regard to Deputy Batchelor, Anderson specifically complains that although his attorney inquired whether the Hood County Sheriff's Department had a policy on pursuing vehicles, he stopped short of eliciting the actual provisions of that policy.
Deputy Knight testified that he assisted Deputy Batchelor in apprehending Anderson. According to Deputy Knight, he and another unit tried blocking a lane to force Anderson to stop, but Anderson did not slow down. Deputy Knight then exited the lane, turned around, and joined the pursuit. When he arrived at the scene of the collision, he helped Deputy Batchelor remove Anderson from his vehicle and arrest him. He testified that the vehicle that Anderson hit had significant damage to its passenger side.
In addition to the facts as recited above, Deputy Batchelor testified on direct that during the pursuit, he observed Anderson drive 60 miles per hour in a 30 mile-per-hour residential area, run stop signs, almost strike a vehicle head-on "doing about 80 miles an hour," and drive up to 100 miles per hour as he headed toward the intersection where the collision occurred. He testified that other patrol units attempted to deploy spike strips to deflate Anderson's vehicle's tires and slow it down, to no avail. Even though he testified that the pursuit would have been terminated if the risk of someone getting injured in a residential area was too great, Deputy Batchelor also opined that the manner in which Anderson used his vehicle had a high probability of causing death or serious bodily injury to someone.
On cross-examination, Anderson's counsel asked Deputy Batchelor about how many police pursuits he had been involved in. Of the estimated 15 to 20 pursuits he recalled, the deputy said that only three or four may have resulted in an arrest. Most suspects had gotten away because the risk of someone getting injured in a residential area was too great to chase. When Anderson's attorney segued into pursuit policies, Deputy Batchelor agreed that some departments had no-pursuit policies, but the prosecutor then lodged a relevancy objection that was sustained by the trial court. At that point, Anderson's attorney asked the deputy about whether he was familiar with spike strip procedures, and Deputy Batchelor replied, "I couldn't cite -- cite them to you off the top of my head, no, sir." The deputy had previously testified during cross-examination that spike strips were deployed three times that evening but he did not know if any of the deployments had been successful because he did not examine Anderson's tires after the collision. Anderson's counsel showed the deputy State's Exhibit 5, and the deputy agreed that the driver's side front tire of Anderson's vehicle appeared to be deflated and acknowledged that if a car loses a tire, this can cause an accident or cause the driver to lose control. The deputy agreed that it could be fair to say that Anderson's car jerked left when the tire deflated.
As for his failure to cross-examine Meadows, who was pregnant at the time of the accident and who gave birth prematurely a few days later, the record is silent with regard to his attorney's rationale for not questioning her because Anderson did not call his trial counsel to testify at the hearing on the motion for new trial to explain his reasoning. Nevertheless, we recognize that it would have been a sound trial strategy not to attack such a sympathetic witness. "Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial." Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005).
As for the deputies, again we do not have the benefit of knowing why Anderson's attorney did not cross-examine Deputy Knight or ask additional questions of Deputy Batchelor. But we cannot say that the trial attorney's conduct was "so outrageous that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 593; see also Thompson, 9 S.W.3d at 813 (reciting the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance); Harkcom v. State, No. 02-12-00576-CR, 2016 WL 3960581, at *5 (Tex. App.—Fort Worth July 21, 2016, no pet.) (mem. op., not designated for publication) (observing that the suggestion that counsel should have conducted cross-examination differently "does not rebut the presumption that counsel acted reasonably, especially given the fact that counsel was not given the opportunity to explain his rationale for how he questioned Trooper Neville"). We overrule this portion of Anderson's first point.
3. No Guilty Plea
Anderson directs us to his testimony during the hearing on his motion for new trial, in which he stated that he had told his trial attorney that he wanted to plead guilty but that the attorney had refused to allow it. He now argues that by preventing him from pleading guilty, his trial attorney undermined his right to a zealous defense and the purpose of the adversarial process.
After the jury was brought in and the trial court read the indictment and asked Anderson for his plea, Anderson's attorney informed the trial court that his client was standing mute under article 26.12 of the code of criminal procedure. The trial court stated, "Court will receive that as a plea of not guilty."
Article 26.12 provides, "If the defendant answers that he is not guilty, such plea shall be entered upon the minutes of the court; if he refuses to answer, the plea of not guilty shall in like manner be entered." Tex. Code Crim. Proc. Ann. art. 26.12 (West 2009).
During closing arguments, Anderson's attorney conceded Anderson's guilt to the charged offense but not to the deadly-weapon allegation, stating,
I'm not going to ask you to go back there and find Kristopher Anderson not guilty of evading arrest. I have no problem with you finding him guilty of evading arrest. He has no problem with you finding him guilty of evading arrest. Find him guilty. But don't blame him for a procedural mistake. Don't find him guilty of using a deadly weapon when he didn't use it. [Emphasis added.]The trial attorney's version of what happened when his client stood mute does not appear in the record, but even assuming that the performance of Anderson's attorney fell below prevailing professional norms, Anderson does not explain—in light of his attorney's concession of guilt on his behalf to the evading arrest charge during the guilt-innocence closing argument—how he was prejudiced by showing a reasonable probability that the proceeding's result would have been different if he had pleaded guilty at the outset instead of standing silent. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Accordingly, we overrule the last portion of his first point.
III. Motion to Withdraw
In his second point, Anderson argues that the trial court should have granted his counsel's motion to withdraw. Anderson refers us to Villegas v. Carter, 711 S.W.2d 624, 625-26 (Tex. 1986), to support his argument that he has the right to hire his own counsel and the right to have sufficient time to hire counsel if his appointed counsel has good cause to withdraw. We note at the outset that Villegas is a civil case wherein the supreme court held that the trial court abused its discretion by granting an eleventh-hour motion by Villegas's attorney to withdraw and then denying Villegas's request for a continuance to obtain new counsel. See id. Even assuming that the same principles govern in the criminal context, Villegas is distinguishable because the trial court neither granted a motion to withdraw on the eve of trial nor forced Anderson to defend himself pro se.
Here, Anderson essentially raises an unnumbered third point with regard to the lack of a continuance.
The State responds that because Anderson failed to show how his attorney's representation was inadequate, the trial court did not abuse its discretion by denying counsel's motion to withdraw or by denying Anderson's motion for a continuance to hire a new lawyer. As the State points out, at the time Anderson's attorney filed his motion to withdraw six days before the December 5, 2016 trial date—the second trial setting—the case had been pending for more than a year.
The trial court has discretion to determine whether counsel should be allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The trial court also has discretion to determine whether to grant a continuance. Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982). We assess whether the trial court abused its discretion in light of the information before the trial court at the time of its ruling on the motion. Id.; Stephenson v. State, 255 S.W.3d 652, 655 (Tex. App.—Fort Worth 2008, pet. ref'd) (mem. op.). The defendant carries the burden of proving he is entitled to new counsel, and a conclusory allegation of a conflict of interest, as was claimed here, is insufficient to meet that burden. Stephenson, 255 S.W.3d at 655-56.
With regard to whether a continuance should have been granted so that a defendant could have counsel of his choice, various factors must be considered, including (1) the length of the delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused's counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, and (9) the quality of legal representation actually provided. Windham, 634 S.W.2d at 720. Public interest in the fair and orderly administration of justice may be greater than a defendant's right to have counsel of his choice. Id.
Furthermore, the trial court is under no duty to search for an attorney agreeable to the defendant, and the right to counsel cannot be insisted upon in such a way as to obstruct the orderly administration of justice. Gonzales v. State, 532 S.W.2d 343, 345 (Tex. Crim. App. 1976). And personality conflicts or disagreements concerning trial strategy are typically not valid grounds for withdrawal. King, 29 S.W.3d at 566.
In Gonzales, the court of criminal appeals noted that the appellant's request for the appointment of different counsel when he expressed dissatisfaction with his existing counsel came right before trial—immediately before jury selection—and no showing was made of how he did not receive adequate representation of counsel. 532 S.W.2d at 345. Accordingly, the court held that the trial court did not err by refusing to grant the request for another attorney. Id.
In King, two weeks before jury selection was scheduled to begin, King's attorney filed a motion to withdraw and explained at the hearing that he and the defendant were experiencing personality conflicts and that the defendant would not speak with him. 29 S.W.3d at 565-66. The defendant then explained to the trial court that he had sent the court three identical letters explaining why he wanted different counsel: his dissatisfaction with counsel's failure to provide him with updates "and certain other unspecified information," counsel's disagreement with the defendant's innocence, and counsel's alleged acknowledgment that he planned to do no more than try to ensure the defendant did not receive the death sentence. Id. at 566. The court of criminal appeals held that no abuse of discretion was shown when King had merely referred the trial court to his letters despite having been given the opportunity at the hearing to expand on his reasons for dissatisfaction with counsel and because by the time the motion was filed, counsel had worked on the case for several months, filing over 30 pretrial motions by that time, requiring a trial delay if new counsel were substituted. Id. The court further observed that King had not demonstrated how counsel's performance deviated from prevailing professional norms or that his continued representation prejudiced the trial. Id.
Here, Anderson's attorney filed a motion to withdraw just six days before trial was set to begin. In it, he asserted that a conflict had arisen between him and Anderson that threatened his ability to render effective representation. Specifically, Anderson's attorney stated that after meeting with his client on various occasions at the Hood County Jail, Anderson told him that he had "severed the attorney client relationship" and that he "does not trust counsel to represent him in this matter."
Three days later, the trial court held a hearing on the motion. At the hearing, Anderson's attorney informed the trial court that his client had told him that he should consider their relationship severed and asked him to file the motion to withdraw. According to the attorney, Anderson told him "in essence, that he didn't consider [him] his lawyer anymore." Anderson's attorney further expressed his observation that Anderson did not "seem to have any interest in any of the legal advice, strategy[,] or anything [his attorney] ha[d] to offer in this case." Anderson requested thirty days to retain counsel. The trial court told Anderson that he was welcome to hire his own lawyer but denied the motion to withdraw and told Anderson that his current trial attorney would remain appointed counsel, although Anderson could represent himself pro se.
When Anderson asked the trial court how long he might have to get his own attorney, the prosecutor informed the trial court that the case was set for trial the following week and that this was the second time it had been set for trial and the second time the State had made "travel arrangements." Anderson told the trial court that he needed at least two weeks to get an attorney; the trial court told him that the case was set for trial the following Monday at 9 a.m.
The prosecutor did not provide further elaboration regarding the circumstances necessitating travel arrangements in this case.
This hearing occurred on the Friday preceding the Monday trial setting.
Based on the above, we do not think that the trial court abused its discretion by denying the motion to withdraw or by denying the request for a continuance. See King, 29 S.W.3d at 566; Windham, 634 S.W.2d at 720. The record reflects that—at best—Anderson did not like his trial attorney and wanted the counsel he had originally retained but then could not afford. On the eve of trial, Anderson sought to have his trial counsel withdraw and to have new counsel appointed; yet, as set out above, the record does not reflect that Anderson received inadequate representation. See Gonzales, 532 S.W.2d at 345. Accordingly, the trial court did not abuse its discretion by denying a continuance for Anderson to hire new counsel. See Windham, 634 S.W.2d at 720 ("[T]his Court has repeatedly held that a denial of a continuance will not be a basis for ineffective assistance of counsel when the accused was ably represented."). We overrule Anderson's second point.
At a June 27, 2016 hearing on a motion to withdraw by Mark Dewitt, Anderson's initial retained counsel, Anderson asked the trial court if he could have Dewitt as his appointed counsel, and the trial court told him that his appointed counsel was "whoever is up next on [the appointment] list," which did not turn out to be Dewitt.
IV. Conclusion
Having overruled both of Anderson's points, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and MEIER, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: January 11, 2018