Opinion
NO. 14-17-00147-CR
03-20-2018
MICHAEL JAMES DUDICH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law Washington County, Texas
Trial Court Cause No. 2015-0402
MEMORANDUM OPINION
Appellant Michael James Dudich appeals his conviction and sentencing for driving while intoxicated. In two main issues, he argues that his counsel failed to provide effective assistance both at guilt/innocence and punishment, and that the trial court erred in not holding a hearing on a purported motion for new trial.
After reviewing the record, we conclude that appellant failed to meet his burden in establishing ineffective assistance of counsel and that appellant has not presented anything for our review regarding a motion for new trial. We affirm.
Background
The facts of this case need not be recounted in great detail here for purposes of the issues raised in this appeal.
The State charged appellant by information with Class A misdemeanor driving while intoxicated with an alcohol concentration of 0.15 or more. Appellant pleaded not guilty, and the case proceeded to trial.
See Tex. Penal Code §§ 49.01(2)(B) (a person is "intoxicated" if he has an alcohol concentration of 0.08 or more), 49.04(a) ("A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place."), (d) ("If . . . an analysis of a specimen of the person's . . . breath . . . showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.").
Blinn College Police Department Officer Chris Luttrell observed appellant commit traffic infractions while driving on the Blinn College campus. After stopping appellant's vehicle, Officer Luttrell perceived signs of intoxication. Officer Luttrell asked appellant if he had been drinking, and appellant told the officer that he had "two beers . . . [t]en minutes before he was stopped." Officer Luttrell performed three standard field sobriety tests, which indicated to the officer that appellant was intoxicated.
Officer Luttrell transported appellant to jail, where appellant agreed to provide a breath sample. Texas Department of Public Safety Trooper Quinton Smith administered an intoxilyzer test to appellant, using two separate breath samples. The test result of the first sample showed an alcohol concentration of 0.184; the second test result showed an alcohol concentration of 0.172.
The jury found appellant guilty of the lesser included offense of Class B misdemeanor driving while intoxicated. The jury assessed a punishment of 120 days' in county jail and a $1,500 fine. Appellant now appeals.
Analysis
Appellant raises two issues for our review: whether his trial counsel provided ineffective assistance and whether the trial court erred in not holding a hearing on a motion for new trial. We address each in turn.
A. Ineffective Assistance of Counsel Claim
Appellant contends that his trial counsel provided ineffective assistance of counsel. Specifically, appellant argues that his counsel: (1) incorrectly advised appellant as to the maximum possible punishment, which led appellant to reject a plea offer before trial; and (2) failed to file a motion for probation, despite appellant's eligibility for probation.
In certain circumstances, a jury may recommend to the court that a defendant's sentence be suspended and that he be placed on community supervision (referred herein as "probation"). See Tex. Code Crim. Proc. art. 42A.055. For the option of probation to be submitted to the jury, however, a defendant must file a written sworn motion before trial stating that he has not previously been convicted of a felony. Id.
To prevail on an ineffective assistance claim, the appellant must prove that (1) counsel's representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's deficiency the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We apply the same two-prong Strickland standard of review for ineffective assistance of counsel claims in both the guilt/innocence phase of trial and the punishment phase of trial. Limbrick v. State, No. 14-15-00258-CR, 2016 WL 4131644, at *1 (Tex. App.— Houston [14th Dist.] Aug. 2, 2016, pet. ref'd) (mem. op., not designated for publication).
To establish the first Strickland prong, the appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotation omitted). To overcome the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813 (internal quotation omitted). Failure to satisfy the first prong defeats an ineffective assistance claim. Strickland, 466 U.S. at 697.
With this framework in mind, we turn to appellant's two challenges to his counsel's conduct.
1. Rejecting the plea offer
In the first ground for appellant's ineffective assistance claim, appellant contends that his counsel misrepresented the possible range of punishment appellant would face if he was convicted of the charged offense. As discussed more below, it does not appear that appellant filed a motion for new trial alleging ineffective assistance of counsel. Accordingly, appellant has not developed an adequate record to prove his trial counsel misinformed him of the consequences of rejecting a plea offer and proceeding to trial. See Sims v. State, Nos. 14-16-00707-CR, 14-16-00708-CR, 2018 WL 505041, at *2-3 (Tex. App.—Houston [14th Dist.] Jan. 23, 2018, no pet. h.) (mem. op., not designated for publication) (without proper evidentiary record, appellant's claim that counsel improperly advised appellant regarding possible sentencing failed). Without support in the record, "a defendant's claim he was misinformed by counsel is not enough" for this court to hold that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Bass v. State, No. 14-99-00773-CR, 2000 WL 1726689, at *2 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (not designated for publication) (per curiam). Rather, appellant's claims may be best developed in the context of an evidentiary hearing on application for writ of habeas corpus. Thompson, 9 S.W.3d at 813-14; Bass, 2000 WL 1726689, at *2.
We conclude that appellant failed to rebut the strong presumption of reasonable counsel as to his claim that counsel advised him incorrectly on the potential range of punishment.
2. Probation
In his second ground, appellant argues that his counsel provided ineffective assistance by failing to file a motion for probation. We need not address whether such a failure amounts to deficient performance, because the record in this case establishes that appellant made a deliberate decision not to submit the option of probation to the jury.
After the trial court received the jury's guilty verdict, the trial court confirmed appellant's election that punishment be assessed by the jury as well. Appellant's counsel confirmed appellant's election, and the trial judge noted that he "did not see an application for probation in the Court's file." The following exchange occurred, in open court, with appellant present, without the jury:
[Defense counsel]: That's true, Your Honor.
[The Court]: All right. Of course, without an application, you can't get probation. So, do you want to put a brief record on as to that?
[Defense counsel]: It's been discussed. We turned down probation. We discussed it even during this time period. Now, if you [] wish for me to confer with my client and make a statement for the record, . . . I believe we're okay with that. . . . It was our strategy just to accept whatever the jury says.
[The Court]: If you will do the Court a favor, if you will confer with him for a moment and have him confer that that is his wish.
* * *
[Recess, then open court resumes, with appellant present, no jury]
[The Court]: All right. Of course, Mr. Dudich filed an election to go to the jury, but there's not an application for probation on file. It's my understanding that that was your client's choice and decision?
[Defense counsel]: That's correct, Your Honor, it's Michael Dudich's conscious decision, having fully discussed the concept of probation, it having been explained to him and what it means, that he could receive it and serve it in lieu of a jail sentence, has been fully discussed and . . . the election of Michael Dudich is to proceed without filing a formal application for probation. He is qualified --
[The Court]: Sure.
[Defense counsel]: -- but he's not filed an affidavit stating such.
[The Court]: Okay. And, of course, without that, there will be no argument as to probation. That option will not be before the jury.
The record therefore reflects that counsel's failure to file a motion for probation was the result of appellant's "conscious decision." The trial court repeatedly stated that, in the absence of a motion for probation, the option for probation would not be before the jury. Appellant was present during the exchange between his counsel and the trial judge, and the record does not indicate that appellant objected to or otherwise disagreed with his attorney's representations to the trial court regarding appellant's decision not to seek probation. When a defendant affirmatively chooses to abandon a possible avenue of relief, he may not later complain about the effect his own decision had upon the performance of counsel. Accord, e.g., Joya v. State, No. 14-07-00178-CR, 2008 WL 150077, at *3 (Tex. App.—Houston [14th Dist.] Jan. 17, 2008, pet. ref'd) (mem. op., not designated for publication) (record established that counsel's failure to file sworn motion for probation was the result of defendant's refusal to elect whether he wanted punishment assessed by jury or trial court). "Any other result would be to allow a defendant to benefit from his own . . . non-feasance." Id.
Based on this record, we conclude that appellant has not met his burden of proving by a preponderance of the evidence that trial counsel's representation was deficient for failing to file a motion for probation.
* * *
As we have rejected each of appellant's arguments that his counsel's performance was deficient, we need not address Strickland's prejudice prong. Strickland, 466 U.S. at 697. We overrule appellant's first issue.
B. Motion for New Trial
In his second issue, appellant argues that the trial court abused its discretion in allowing a motion for new trial to be overruled by operation of law without conducting a hearing on the motion.
The purpose of conducting a hearing on a motion for new trial is to enable the court to decide whether the case should be retried and to enable the defendant to develop a record for presenting issues on appeal in the event the motion is denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). A hearing on a motion for new trial is mandatory when the motion raises matters that are not determinable from the record and the defendant establishes the existence of reasonable grounds showing that he could be entitled to relief. Id. at 338-39. The right to a hearing on a motion for a new trial, however, is not absolute. Id. at 338. To be entitled to a hearing on a motion for new trial, the defendant must first request a hearing. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) ("Presenting the motion, along with a request for a hearing, is required to let the court know that the defendant wants the trial court to act on the motion and whether the defendant would like a hearing on the motion."). The defendant also must satisfy procedural requirements that the motion be timely filed and timely presented to the trial court. Tex. R. App. P. 21.4, 21.6 (rules providing for filing and presenting motions for new trial); Rodriguez v. State, 425 S.W.3d 655, 661 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
We cannot address the merits of appellant's argument because there is no motion for new trial included in the record, nor is there any indication that appellant filed a motion for new trial and presented it to the trial court. See Tex. R. App. P. 33.1(a)(1) (as a prerequisite to presenting a complaint for appellate review, record must show that complaint was made to trial court by, inter alia, timely motion), 34.5(a)(6) (clerk's record must include any post-judgment motion). We therefore do not reach the question of whether the trial court abused its discretion by not holding a hearing. Accord Jenkins v. State, 495 S.W.3d 347, 353-54 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (appellant failed to preserve complaint regarding lack of a hearing because appellant did not give trial court notice of desire for hearing on motion for new trial).
We overrule appellant's second issue.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).