Opinion
No. 05-07-00511-CR
Opinion filed November 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law Kaufman County, Texas, Trial Court Cause No. 04CL-1429.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Mitchell Cupp, Jr. of driving while intoxicated, a class B misdemeanor. The trial court assessed punishment at ninety days in jail and a $750 fine, and then suspended the imposition of sentence and placed appellant on community supervision. Appellant filed a motion for new trial asserting ineffective assistance of counsel, which was denied. Appellant presents the same argument here he made in his motion for new trial-ineffective assistance of counsel. For the reasons set forth herein, we affirm. Because the facts are well known to the parties and the law is settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
BACKGROUND
The record shows appellant was involved in a one-vehicle traffic accident in the city of Terrell about 8:30 p.m. An investigating police officer, Joshua Phillips, observed an overturned car and a down power pole. Phillips identified appellant as the driver. Appellant smelled of alcohol, had slurred speech and bloodshot eyes, was unsteady on his feet, and did not follow directions about the live wires on the ground. Appellant admitted he was coming from a bar, where he had consumed "a couple of drinks." Phillips administered a field sobriety test and observed certain clues of intoxication. After one test, appellant asked to be taken to the hospital. The hospital's treating physician testified that appellant had a blood-alcohol level of 0.235 and that appellant's urine tested positive for cocaine.APPLICABLE LAW AND STANDARD OF REVIEW
We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant has the burden to show by a preponderance of the evidence: (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the appellant in that, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance, but we do not judge counsel's strategic decision in hindsight; rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. An accused has a fundamental constitutional right to testify in his defense. Johnson v. State, 169 S.W.3d 223, 236 (Tex.Crim.App. 2005). Trial counsel "shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant." Id. at 235. If counsel frustrates the defendant's right to testify, the defendant must show that counsel's performance was deficient and it prejudiced the trial. See id. at 228. We review a trial court's decision to grant or deny a motion for new trial for abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). When, as here, the trial court makes no findings of fact regarding the denial of a motion for new trial, we should "impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record." Johnson, 169 S.W.3d at 239 (citation omitted).THE RECORD
At the hearing, appellant's trial counsel testified that his trial strategy was not to place appellant on the stand to testify. He said that appellant's explanation for the accident was that a dog had run in front of his car. Counsel stated he did not see anything to be gained by appellant testifying because the State could then have questioned him about his drinking habits. The following exchange occurred when appellant's trial counsel was questioned by his appellate counsel:Q. You mention that your client did not testify. Did — you've already told the Court why you felt it was sound trial strategy not to allow him to testify. But did you allow your client to make that decision to testify or did you tell him he couldn't testify?
A. As I — I don't recall. I didn't tell him he couldn't testify. As I — as I recall, he acquiesced. I — I told him what the negatives and positives were. And he didn't — I don't recall him ever saying, "I want to testify."
The Court:. . . . [A]re you saying that after conferring with your client, that y'all decided not to testify and you told me that or are you saying you made that decision for him? What are you saying?
The Witness: I'm — I explained the positives and negatives to the situation. And he did not tell me that he wanted to testify.
The Court: So ultimately, your client made that decision?
The Witness: And I —
The Court: You advised him.
The Witness: And he — and he — and then he told me about the dog. And I said, "You've got to take the stand, you know, to get that in. And, you know, you would be subject to [c]ross-[e]xamination."
The Court: So was it ultimately his decision with your advice? I'm just trying to get to the heart of it.
The Witness: Well, he didn't — he kind of — more or less, he acquiesced. He didn't make a conscious or he did not verbalize to me a conscious decision, "I do not wish to testify." Nor did he say, "I want to testify anyway."
The Court: Okay.
The Witness: That I recall.
The Court: Okay. Very good. That clears it up for me.Later, trial counsel was asked, "If [appellant] had told you that he wanted to testify, what would you have done?" Counsel replied:
I would have put him on the stand. I would have questioned him with regard to the fact that I had advised him not to testify; that he was choosing to testify himself and it was against the advice of counsel and let him run.Later, appellant was asked whether he understood he had the right to testify in his defense. Appellant replied:
I had talked to [trial counsel] about it. His strategy was, I didn't get on the stand. I didn't know that I could basically say, "I want to be there to testify." I thought there were some things —
The Court said appellant "really didn't answer the question" and asked appellant,
Did you know that you had the right to testify? That's what [appellate counsel] asked you. You didn't really answer but nobody objected. So — but I want to know the answer to that question. . . . [D]o you know that you have the right to testify? Did you know that at your trial?
Appellant responded, "Yeah. I'm sure I did." Later, appellant testified that trial counsel explained to him the positives and negatives of testifying, and appellant did not tell trial counsel that he wanted to testify; he said he "was going with [trial counsel]'s advice."Finally, on re-direct examination, appellant stated he knew he had the right to testify, but he did not understand that he "could say 'I want to get up on the stand, that I've got to be able to tell my story.' I didn't know I could do that." He was asked, "So you did not know you could overrule your attorney?" Appellant replied, "Correct." He was then asked:
Q. And testify even against his advice?
A. I didn't think it would be [a] wise thing to do. No, I didn't know.
Q. To testify against his advice?
A. Right.