Opinion
No. 05-10-00437-CR
02-07-2012
EARNEST WRIGHT BUTLER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and OPINION FILED FEBRUARY 7, 2012
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-53458-MR
OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Richter
Appellant waived a trial by jury and pled guilty to aggravated sexual assault, and the trial court sentenced him to thirty years' imprisonment. In a single issue on appeal, appellant contends he was denied his constitutional right to effective assistance of counsel. Because the record is silent as to the motivations underlying counsel's tactical decisions, we cannot conclude appellant's legal representation was constitutionally deficient. Therefore, we affirm the trial court's judgment.
Appellant asserts his trial counsel was ineffective because he failed to conduct a reasonable investigation of appellant's alleged mental disabilities, failed to object to the State's evidence of extraneous sexual assaults and indecency by contact, failed to seek suppression of appellant's confession, failed to object to leading questions and effectively cross-examine the complainant, and failed to develop a reasonable trial strategy. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U. S. Const. amend. VI; Tex. Const. art. I, §10. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92. Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
Review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1994). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Here, appellant filed a motion for new trial supported only by his affidavit stating, that trial counsel "wasn't hardly doing anything," and "I wanted my attorney to suppress my statement to the detectives." Appellant's affidavit further stated that he was in special education in high school because he was a slow learner, but his counsel did not obtain his school records or ask him about it during his plea. There was no hearing on the motion, which was overruled by operation of law. Thus, the record is silent as to counsel's strategy. In the face of this silent record, we apply a strong presumption that trial counsel was competent. See Thompson, 9 S.W.3d at 813.
Appellant first alleges his trial attorney was ineffective because he failed to conduct an adequate investigation of his "mental challenges." Although appellant devotes considerable effort to the general discussion of mental health issues, the record does not reflect that any such issues existed or could have been established. The record before us is silent as to the extent of counsel's investigation. We cannot discern what investigation was performed or not performed, and we cannot presume that no investigation was made. When the record is silent as to the extent of counsel's investigation, the first prong of Strickland is not met. See, e.g., Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Cantu v. State, 993 S.W.2d 712, 718 (Tex. App.-San Antonio 1999, pet. ref'd).
Appellant also complains that counsel failed to object to proof of extraneous offenses and leading questions. Specifically, appellant seems to complain that the State proved the offense was part of a pattern of sexual abuse that took place repeatedly. Generally, an isolated failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Here, appellant asserts that counsel failed to object on multiple occasions. But to successfully argue that trial counsel's failure to object amounted to ineffective assistance, appellant must show that the trial judge would have committed error in overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Appellant makes no such showing.
The State advances several reasons why counsel's failure to object might be considered sound trial strategy. While we do not necessarily disagree, we decline to indulge this discussion. To do so requires impermissible speculation about counsel's motives and fails to give effect to the presumption of reasonable representation.
Appellant's argument concerning trial counsel's failure to effectively cross-examine the complainant is similarly mis placed. There is nothing in the record to suggest that more intense "adversarial testing" of the complainant's claims would have yielded a different result. Indeed, a more rigorous cross-examination might have had the opposite effect and enhanced the complainant's credibility with the court. At this juncture, on this record, we can only speculate as to what may have transpired. Retrospective speculation, however, has no place in our analysis. See Bone, 77 S.W.3d at 835. Our decision must be based on the facts of the particular case viewed at the time of counsel's conduct so as to avoid the distorting effects of hindsight. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011), cert. denied, 131 S.Ct. 3073 (2011).
The record is also silent as to counsel's strategy concerning the written statement appellant gave to the police. Appellant does not claim, nor is there anything in the record to suggest that appellant's statement was not voluntary. The affidavit appellant filed in support of his motion for new trial states only that appellant wanted his lawyer to suppress his statement. Appellant's desires, however, are not indicative of a sound legal basis upon which counsel might reasonably seek to suppress the statement. Appellant also fails to demonstrate how, in light of his subsequent judicial confession, counsel's failure to seek suppression of his earlier statement constituted deficient performance. Again, because the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. Bone, 77 S.W.3d at 833.
Finally, appellant complains about trial counsel's overall trial strategy. The gist of appellant's complaint seems to be that had counsel focused more on his mental challenges, the court may have deemed him less culpable in his conduct. As with appellant's other complaints about trial counsel, the conclusion appellant seeks to advance is not supported by the record. Identification of counsel's alleged acts and omissions is not enough; appellant must also affirmatively prove that the acts and omissions fell below the professional norm for reasonableness. Id. While the record reflects that appellant was placed in special education classes because he is a slow learner, the record also reflects that he graduated from high school. There is no evidence that he was incapable of comprehending that sexual conduct with an eight-year-old girl is impermissible, or that the trial judge would have considered appellant's mental challenges as mitigating such behavior. Thus, appellant has failed to overcome the presumption that counsel's performance was within the wide range of reasonable representation. See Salinas, 163 S.W.3d at 740. On the record before us, we cannot conclude trial counsel's conduct is so egregious that no reasonable trial strategy could justify it. See Goodspeed, 187 S.W.3d at 392. Appellant's sole issue is resolved against him. The trial court's judgment is affirmed.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100437F.U05