No. 04-06-00039-CR
March 7, 2007. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-2628, Honorable Sharon MacRae, Judge Presiding.
Sitting: CATHERINE STONE, Justice KAREN ANGELINI, Justice STEVEN C. HILBIG, Justice.
STEVEN C. HILBIG, Justice.
AFFIRMED A jury convicted Kenneth Brown of burglary of a habitation with intent to commit assault and sentenced him as a repeat offender to twenty years in the Texas Department of Criminal Justice-Institutional Division. On appeal Brown seeks a new punishment hearing, arguing his trial counsel rendered ineffective assistance in the punishment phase of the trial because he failed to investigate or call any witnesses on Brown's behalf and gave an ineffective closing argument. We affirm.
Factual and Procedural Background
Seventeen-year-old Simona McCalister told Kenneth Brown and his friend Devin Smith to stay away from her house. When they nevertheless returned and refused to leave, McCalister called the police and told them there was a truck she believed was stolen parked in front of her house. When the police investigated and towed the truck, Brown became angry and told McCalister he would be back and was going to beat her up. At about 2:00 a.m. the next morning, McCalister awoke to find Brown standing at the foot of her bed with a gun in his hand and a female standing next to her bed with a container of mace. Brown hit McCalister across the forehead with the gun and the girl sprayed mace in McCalister's eyes. McCalister became aware that Smith and two other females were also in the room when they started pulling McCalister's hair, hitting her, and throwing furniture at her. After a few minutes, Brown said "that's enough" and the five intruders left. Brown was charged with burglary of a habitation with intent to commit assault. The jury, choosing to disbelieve Brown's alibi witness, found Brown guilty. At the punishment phase of the trial, Brown pleaded true to the enhancement allegation that he had been convicted in 1992 of aggravated assault on a peace officer. The State also presented documentary evidence of a felony conviction for possession of cocaine in 1992 and a state jail felony conviction for manufacturing or delivering less than one gram of a controlled substance in 2001. Through the testimony of two victims and ten police officers, the State presented evidence to the jury that Brown had been involved in burglarizing cars in July and August of 2003; that in October 2004 Brown was found in a parked car and arrested for outstanding warrants and officers found marijuana on the seat and a gun in the engine compartment of the car; and, also in October 2004, police found a bag containing ten marijuana "blunts" in a room from which Brown fled when officers were attempting to serve a felony warrant on another person. Finally, the State put on evidence that in January 2005, less than two weeks after McCalister was assaulted, a private security officer at an apartment complex responded to a call that two people were breaking into vehicles. When he arrived at the parking lot, the security officer encountered two men, later identified as Brown and Melvin King, burglarizing a car. The men ran but King turned back, walked towards the security officer and threatened him by pointing a gun at him. The men fled in a car Brown was driving. When Brown was apprehended a short while later, a small bag of marijuana was found in the car. The State then rested. The next morning, after the charge conference, the following exchange occurred: Court: Now, Mr. Brown, you said you wanted more time? Brown: Yes, Your Honor. I feel that I got some people that I know might speak up on my behalf that I'm not all that bad of a person — for my sentencing. . . . Court: Well, did you share with your attorney the names of these people prior to 9 o'clock this morning so that he might get them in here? Brown: No, ma'am. I haven't had no-I'm in custody, and I mean, I ain't seen my attorney since yesterday when we left the courtroom. . . . Court: Mr. Held? Counsel: Your Honor, in preparing for this case, I have talked to those individuals that I believe were appropriate with regard to sentencing, and I feel like having made judgments about whether those people should be presented or not or are willing to or not testify, that the case that I will present includes everything I could do in that area. Court: All right. So, in other words, you and your client have talked about character witnesses and so forth before? Counsel: We have talked about character and how to prepare sentencing, but without receiving any specific names. I simply went and interviewed those witnesses that I felt might be of assistance. I am also of the opinion that I would be hesitant to-given the nature of the case and the nature of the evidence that has been presented so far, I would be probably very reluctant to advise my client that I should put on character witnesses so that the prosecution can ask them about their knowledge about each one of these cases, thus bringing it back in front of the jury again. . . . And I'm talking, Your Honor, about any witnesses whose names he might now provide me as opposed to me either finding on my own or any other type of discussion. Court: Well, and you shared with him the dangers of putting on character witnesses, considering his criminal history? Counsel: I'm hesitant to explain to the Court — . . . — anything I may have advised him. . . . But I think I have advised him appropriately. Court: All right. Mr. Brown, you know, how long have you been in jail? Brown: Oh, one year, ma'am. Court: One year. And you've had numerous contacts with Mr. Held. I think you've had plenty of time to develop some kind of a defense, and I'm not going to give you any more time to get these witnesses in. We're just going on. So, let's do it. If you'll bring the jury in. The defense then rested without presenting any evidence. In his closing argument, Brown's attorney argued that Brown is essentially just a petty drug user and a car burglar but not a violent criminal. He pointed out that none of the State's punishment evidence put a weapon in Brown's hands and that "he's not a person that uses a weapon." He argued the incident with McCalister was the result of drug use and pointed out that McCalister testified she did not believe Brown was a bad person and had forgiven him. Counsel asked the jury to sentence Brown to between five and ten years. The State rebutted the argument by emphasizing Brown's lengthy history of criminal activity, beginning with a violent crime in 1992, continuing with his violent pistol-whipping of McCalister, and his participation in an aggravated robbery less than two weeks later. Pointing out that Brown continued to commit felonies after serving a ten-year sentence for the 1992 aggravated assault, the State asked the jury to return a life sentence. The jury returned a verdict sentencing Brown to twenty years and a $ 3,000 fine. Brown gave notice of appeal on the day sentence was imposed and the trial court immediately appointed appellate counsel. Brown did not file a timely motion for new trial. Discussion
Brown contends he was denied effective assistance of counsel at the punishment phase of the trial because counsel "failed to investigate potential character witnesses identified by Mr. Brown, failed to call any witnesses whatsoever; did not present a case for the defense at punishment; and focused a substantial amount of his closing argument on a point that was logically inconsistent with the jury's verdict." To succeed on a claim that counsel rendered ineffective assistance, Brown must show by a preponderance of the evidence that counsel's performance was constitutionally deficient and that this deficient performance prejudiced his defense. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex.Crim.App. 2004). To demonstrate prejudice, Brown "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." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 50 L. Ed.2d 647 (1984). When appellant has not met his burden to show prejudice, we may dispose of the claim on that ground without determining whether counsel's performance was deficient. Id. 697. Brown first argues prejudice is presumed in this case because he was constructively denied the assistance of counsel altogether in the punishment phase of the trial. See Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999) (identifying exceptions to the general rule that a defendant claiming ineffective assistance of counsel must affirmatively prove prejudice). We disagree. The record demonstrates that counsel discussed issues concerning the use of character evidence with Brown before trial, Brown did not disclose any potential character witnesses to counsel before trial, counsel made some investigation of potential mitigating evidence and interviewed witnesses he identified on his own, and counsel made a strategic decision not to present any evidence. Counsel stated it was his strategy not to use character witnesses given the State's ability to question the witnesses about their knowledge of the other crimes and bad acts allegedly committed by Brown that were already before the jury. There was clearly a plausible strategic or tactical basis for counsel's actions. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App. 1980). We will not second-guess counsel's trial strategy through hindsight and the fact that another attorney might have pursued a different course does not render counsel's performance deficient. See Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App. 1979). Under these circumstances, we hold Brown was not constructively denied the assistance of counsel. C.f. Milburn v. State, 15 S.W.3d 267, 270-71 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (holding it was "a close question . . . whether appellant was constructively denied any defense at all in the penalty phase of trial" where "trial counsel performed no investigation into any possible mitigating factors and failed to contact even a single family member or friend, despite the availability of such mitigation evidence"). Brown next contends he was prejudiced by counsel's allegedly deficient performance. In support of this contention, Brown states conclusorily that "[b]ecause trial counsel presented no evidence whatsoever and gave a prejudicial closing argument, Mr. Brown very likely received a greater punishment than he would have otherwise." We again disagree. Brown did not identify any of the witnesses he contends counsel should have called to testify; did not show their availability; and did not establish their testimony would have benefitted him. He has thus failed to show that the available mitigating evidence, when weighed against the State's aggravating evidence, should undermine our confidence in the outcome. See Ex parte Martinez, 195 S.W.3d 713, 730 (Tex.Crim.App. 2006); Ex parte McFarland, 163 S.W.3d 743, 758 (Tex.Crim.App. 2005). Moreover, notwithstanding counsel's failure to present punishment evidence and the allegedly harmful closing argument, the jury sentenced Brown to twenty years even though the evidence of Brown's callous attack on McCalister, Brown's criminal history and recent criminal activity, his failure to be rehabilitated by a previous ten-year prison term, and the State's call for a life sentence, could have resulted in a much longer sentence. We hold Brown has not shown there is a reasonable probability that the result would have been different had witnesses testified Brown was "not all that bad of a person" and had counsel given a more persuasive closing argument. Accordingly, he has failed to establish prejudice. The trial court's judgment is affirmed.