Opinion
Nos. 05-01-01052-CR, 05-01-01053-CR.
Opinion Issued March 25, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F01-00724-UJ and F01-00725-UJ. AFFIRMED.
OPINION
Grant Austin Embree appeals his two convictions for criminally negligent homicide. Appellant was convicted by a jury of criminally negligent homicide as a result of a collision in which his vehicle hit a stopped vehicle in the HOV lane of Interstate 635, killing two of the passengers in that vehicle. The trial judge sentenced appellant to five years in the Institutional Division of the Texas Department of Criminal Justice in each case. In two issues, appellant complains he did not receive effective assistance of counsel at his trial. We affirm the convictions.
Background
About 10:00 p.m. on September 3, 2000, Jennifer Gonzales was driving home with two of her teenage friends, Jessica Sender and Brianna Carmical. Gonzales was driving her Ford Bronco east in the HOV lane of Interstate 635, when she saw a car ahead of her braking and coming to a stop. She also braked and stopped behind two other vehicles, a taxi and a small white vehicle, stalled in the HOV lane. Gonzales turned on her flashers, called 911 and waited for the police to arrive. Appellant, driving a Chevrolet Tahoe, was fast approaching the stopped vehicles. Witnesses estimated the Tahoe's speed at 80-85 miles per hour and testified that shortly before the collision appellant was weaving in and out of the HOV lane, passing slower traffic. As appellant approached the stopped Bronco, witnesses saw appellant collide with the Bronco after he moved into the HOV lane trying to pass a pickup in the adjacent lane. Appellant's Tahoe then spun around and collided with the pickup in the adjacent lane. The force of the impact between the Tahoe and the Bronco killed Sender and Carmical and seriously injured Gonzales. Several eyewitnesses testified the collision occurred in the HOV lane. The Bronco was in the HOV lane after the impact and appellant's Tahoe was turned around facing traffic in the adjacent lane. Other drivers testified they could see the cars slowing down or stopped in the HOV lane from a distance and believed appellant had enough time to slow down and avoid the collision. One of appellant's passengers testified that sometime before the collision, she believed appellant was driving too fast and asked him to slow down. In response, appellant joked, "What do you think I'm going to do, kill you?" Before the impact, appellant was driving in the HOV lane and she saw a vehicle in the HOV lane with its flashers on. On cross-examination she testified she did not think there was anything appellant could have done to avoid the collision. There was no evidence appellant was intoxicated at the time of the accident. According to appellant, the collision was an unavoidable accident. His evidence suggested Gonzales could not stop in time to avoid the cars stopped in the HOV lane and she started to pull out of the HOV lane into on-coming traffic. Appellant, traveling in the lane next to the HOV lane, did not have a chance to avoid Gonzales's vehicle and hit it. After the initial impact, both vehicles hit the taxi stopped in the HOV lane. Appellant's expert witness testified the accident occurred on the edge of the HOV lane or slightly into the lane adjacent to the HOV lane. The State's expert disagreed with this conclusion as being unsupported by the evidence. Appellant was indicted in two cases for manslaughter. He pleaded not guilty in both cases, and the cases were tried together to a jury. In both cases, the jury convicted appellant of the lesser included offence of criminally negligent homicide, and found appellant had used or exhibited a deadly weapon, namely a motor vehicle, in the commission of the offense. After consulting with his trial counsel, appellant changed his pretrial election for the jury to assess punishment and punishment was determined by the court. Appellant was sentenced to five years' confinement in the Institutional Division of the Texas Department of Criminal Justice in each case. The trial court denied appellant's amended motion for new trial in which appellant raised the issue of ineffective assistance of counsel.Ineffective Assistance of Counsel
In his first issue, appellant complains the trial court abused its discretion in denying his amended motion for new trial raising ineffective assistance of counsel. In his second issue, appellant complains the convictions violated his right to effective assistance of counsel as required by the state and federal constitutions. We discuss both issues together. Appellant alleges several errors by his trial counsel in support of the ineffectiveness argument: (1) failure to call an additional eyewitness, (2) failure to fully develop the testimony of appellant's own expert witness, (3) failure to call appellant's mother during the guilt/innocence phase of the trial, (4) failure to object to irrelevant and prejudicial testimony about appellant's demeanor after the accident, (5) failure to challenge the reliability of the State's expert testimony, (6) failure to object to hearsay evidence about the consistency of the eyewitness accounts, (7) introducing affidavits of certain witness that allegedly bolstered the State's case, (8) failure to object to several witnesses wearing yellow ribbons to show support for the victims' families, and (9) advising appellant to change his punishment election because the judge could give probation when the jury could not. The right to effective assistance of counsel is guaranteed under both the federal and state constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The standard for testing ineffective assistance of counsel claims was announced in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). The Strickland-Hernandez standard establishes a two-part test to be used in considering ineffectiveness claims. This standard applies at both phases of trial. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). First, an appellant must show that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must identify the acts or omissions of counsel alleged to have not been the result of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The appellate court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689. Second, an appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must affirmatively prove prejudice. Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), disavowed in part on other grounds by Moseley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998). Appellant bears the burden of showing ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). The alleged deficiencies of counsel must be supported by the record. Johnson v. State, 691 S.W.2d 619, 626-27 (Tex.Crim.App. 1984). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; McFarland v. State, 928 S.W.2d at 500. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We do not inquire into trial strategy unless no plausible basis exists for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). The fact that other counsel might have tried the case differently will not support a finding of ineffectiveness. Small v. State, 692 S.W.2d 536, 539 (Tex.App.-Dallas 1985, pet. ref'd). Thus, conduct must be judged on the facts of the particular case, and allegations must be firmly founded. Id.Discussion
At the hearing on appellant's amended motion for new trial, appellant called his trial counsel and questioned him regarding some, but not all, of these alleged errors. Trial counsel was not asked to explain his reasons for failing to object to evidence about appellant's post-accident demeanor or for offering the affidavits of certain State's witnesses. Trial counsel did explain that his overall trial strategy during the guilt/innocence phase was to focus on what happened to cause the accident, not on what happened after the accident. When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions. Id. Our speculation on the reasons for trial counsel's actions is "not material." Id. Without trial counsel's explanation of the reasons for the action or inaction alleged as error, an appellant will have difficulty overcoming the strong presumption that counsel's decisions fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). For example, "in the absence of evidence of counsel's reasons for the challenged conduct, an appellate court 'commonly will assume a strategic motivation if any can possibly be imagined,' 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999), and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). On this record, we cannot conclude trial counsel's decision to offer the affidavits in evidence or not to object to the post-accident demeanor evidence was so outrageous that no competent attorney would have engaged in such conduct. Next, appellant complains his counsel should have called the taxi driver as an additional eyewitness to support his theory that the Bronco was moving into the adjacent lane of traffic and appellant was unable to stop in time. Appellant's trial counsel called the two passengers in the taxi and both testified to essentially the same facts. The Bronco approached the stopped taxi and was unable to stop and moved out of the HOV lane and into the adjacent lane when the collision occurred. One witness said the Bronco swerved into the adjacent lane and collided with appellant's Tahoe. Both witnesses testified at least two of the Bronco's tires were in the adjacent lane of traffic at the time of the collision. At the hearing on the amended motion for new trial, the taxi driver testified that he would have told the jury the Bronco did not stop and was moving out of the HOV lane before the collision. In his opinion, the Tahoe could not have prevented the collision because the Bronco moved in front of it before the impact. We conclude that appellant was not prejudiced by the failure to call the additional eyewitness because the same evidence was presented through two other eyewitnesses. Appellant's expert witness also concluded the Bronco was moving from the HOV lane into the adjacent lane at the time of impact and the collision was an unavoidable accident. In addition, appellant's trial counsel presented a reasonable explanation for not calling the taxi driver. The taxi driver was uncooperative and did not appear at trial in response to a subpoena. Counsel's investigator contacted the driver when he did not respond to the subpoena and the witness was reluctant to testify. Counsel did not attach the witness and force him to testify because two other eyewitnesses from the taxi had testified to the same facts. They were credible and willing to testify. Counsel was not comfortable calling an unwilling witness under the circumstances. This decision was a legitimate and reasonable trial strategy. Trial counsel is often faced with similar decisions during the course of a trial with limited time to make decisions. Counsel's actions did not fall outside the wide range of professionally competent assistance. The next alleged error was failing to develop the testimony of appellant's expert in two respects: the transmission of the Bronco was not broken, indicating the Bronco was not in park at the time of the impact; and the bulbs from its taillights were apparently removed and the expert could not determine if the bulbs were lit at the time of impact. The expert testified he discussed these issues with counsel before trial, but counsel did not ask specifically if the Bronco was in park at the time of impact or if the expert examined the light bulbs. At trial, however, the expert did testify that the Bronco was moving at the time of impact, thereby indicating it was not in park. Appellant's counsel agreed that the substance of the expert's opinion had been developed through the testimony that the Bronco was moving at the time of the collision and thus could not be in park. The expert also had testified about the missing light bulbs during trial. Trial counsel agreed that he had made an issue about the light bulbs with the expert and also with the police officers. Appellant is not entitled to an error-free attorney. His trial counsel is not ineffective merely because another attorney would have tried the case differently. See Small, 692 S.W.2d at 539. Appellant claims his trial counsel was deficient in failing to call appellant's mother during the guilt/innocence phase of the trial to rebut the State's evidence that appellant was talking on the telephone and laughing after the accident. The State presented several witnesses who testified appellant appeared not to care about the collision and was "smirking" or laughing while he talked on a cell phone. Appellant argued he was in shock and was talking to his mother on the cell phone. His trial counsel offered evidence from appellant's friend, one of the passengers in the Tahoe, that appellant was not laughing, was not his normal self, appeared to be in shock and did not seem to understand what had occurred. At the new trial hearing, appellant's mother testified she was talking on the cell phone with appellant after the accident and at some point was standing across the highway from appellant and could see he was not laughing or joking. She would have told the jury appellant was disoriented, scattered, crying, hysterical, and quite frightened. Appellant's trial counsel explained he did not call appellant's mother because they had decided before trial not to call her until the punishment phase and that his strategy was to focus on the cause of the accident, not what happened afterward. He also had presented the same evidence as the mother's through appellant's friend, who was in the Tahoe at the time of the accident and saw appellant immediately after the accident. Trial counsel's strategy in not calling another witness to testify to these same facts did not fall outside the wide range of reasonable professional assistance. Appellant presents three other alleged errors of counsel, but fails to argue any prejudice from these alleged errors. These errors are the failure to object to the reliability of the State's expert witness because he was not aware that some debris had been moved at the scene before police arrived, failure to object to hearsay testimony about the consistency of eyewitness accounts, and failure to object to some of the State's witnesses wearing yellow ribbons while testifying as a show of support for the families of the dead girls. Trial counsel chose the strategy of attacking the basis for the State's expert opinion through cross-examination. He effectively showed the jury the expert was not aware debris had been moved into the HOV lane, thus tending to discredit the expert's opinion that the collision occurred in the HOV lane. It was also counsel's strategy to rely on the superior testimony of appellant's expert. Apparently second guessing himself at the hearing on the motion for new trial, counsel did suggest that on second thought he should have objected to the State's expert, but he still was uncertain the objection would have been sustained and believed his own expert was better. Counsel's performance is not to be judged by hindsight or second thoughts. See Strickland, 466 U.S. at 689. Even so, appellant has not shown how the outcome would have been different without the alleged errors on these points. The State's expert did not rely solely on the placement of the movable debris in drawing his conclusions. He also relied on other factors, including gouge marks in the pavement, rotational, tire, smudge, and skid marks, the final resting position of the vehicles, the damage to paint and transfer of paint markings on the vehicles, and measurements of the roadway. The witness also testified that the fact some debris had been moved would not have changed his opinion because the other immovable evidence supported a very definite area of impact. Thus, it is doubtful the reliability objection would have resulted in exclusion of the entire expert opinion. Appellant has not demonstrated prejudice from the hearsay evidence or the wearing of yellow ribbons by some of the State's witnesses. All of the eyewitnesses interviewed by the police officers testified and the jury was free to conclude for themselves whether their statements were consistent. Appellant's counsel cross-examined the officers and established they had not interviewed all of the eyewitnesses and could not know whether they were all consistent. Finally, the record does not show appellant was prejudiced by the wearing of the yellow ribbons. Appellant's counsel testified that one witness wore a ribbon while testifying and counsel failed to notice it. He was prepared to object to any other witness doing so, but none did. Appellant's mother testified at the motion for new trial hearing that about half a dozen witnesses wore yellow ribbons. Appellant points to no other evidence to show a reasonable probability that if counsel had objected to the yellow ribbons the result of the trial would have been different. Absent a showing of both deficient performance and substantial prejudice, we cannot conclude the convictions resulted from a breakdown in the adversarial process that renders the result unreliable. See Thompson, 9 S.W.3d at 813. The record does not show a reasonable probability that but for these unprofessional errors, the result of the trial would have been different, thus the second prong of the Strickland test has not been met. In light of all the circumstances of trial counsel's handling of the guilt/innocence phase of the trial, we conclude appellant has not made the required showing of either deficient performance or sufficient prejudice to support the claim of ineffective assistance of counsel during the guilt/innocence phase of the trial. We next consider the effectiveness of counsel during the punishment phase. Appellant argues his trial counsel was ineffective in telling him the jury could not recommend community supervision because of the deadly weapon finding. A jury may recommend community supervision under Tex. Code Crim. Proc. Ann. art. 42.12 § 4 (Vernon Supp. 2003). However, a defendant is not eligible for jury recommended community supervision if the defendant "is sentenced to serve a term of confinement under Section 12.35, Penal Code." Id., § 4(d)(2). Appellant argues he would not have been sentenced under section 12.35, the state jail felony punishment statute, but under section 12.34, the third degree felony punishment statute, because the deadly weapon finding enhanced the punishment under section 12.35(c) of the penal code. Thus, appellant claims article 42.12 § 4(d)(2) would not have applied and the jury could have recommended community supervision. We disagree. The premise of appellant's argument is that he would have been sentenced for a third degree felony rather than a state jail felony. This is incorrect. Appellant was convicted of criminally negligent homicide under penal code section 19.05, a state jail felony. Tex. Pen. Code Ann. § 19.05(b) (Vernon 2003) ("An offense under this section is a state jail felony"). Appellant was not convicted of a third degree felony offense. Therefore, his sentencing was governed by the punishment statutes for state jail felonies, not third degree felonies. Appellant was sentenced under section 12.35. Because of the deadly weapon finding, appellant was sentenced under section 12.35(c) rather than 12.35(a):(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.
. . .
(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(1) a deadly weapon . . . was used or exhibited during the commission of the offense. . . .Tex. Pen. Code Ann. § 12.35 (emphasis added). Appellant was adjudged guilty of a state jail felony and sentenced under section 12.35 even though the punishment for the offense was enhanced to a third degree felony by the deadly weapon finding. The deadly weapon finding did not change the classification of the offense and appellant could only be sentenced under section 12.35 because he was adjudged guilty of a state jail felony. Because appellant was sentenced to a term of confinement under section 12.35, the jury could not recommend community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 § 4(d)(2). Appellant's trial counsel was therefore correct when he told appellant the jury could not recommend community supervision in these cases. Appellant contends trial counsel was ineffective because he told appellant the judge could consider community supervision in these cases despite the deadly weapon finding. The judge may order community supervision in many cases, unless it is shown that a deadly weapon was used or exhibited during the commission of a felony. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3(a), 3g(a)(2). However, a defendant is not eligible for judge ordered community supervision under section three of article 42.12 if he is sentenced to serve a term of confinement under penal code section 12.35, the state jail felony punishment statute. Id., art. 42.12, § 3(e)(2). Thus, judge ordered community supervision under section three is not available in a state jail felony case regardless of the deadly weapon finding. Community supervision in state jail felony cases is governed by section 15 of article 42.12. Tex. Code Crim. Proc. Ann. art. 42.12, § 15(a). In state jail felony cases, community supervision is available under section 15 if the offense is "punished under Section 12.35(a)" of the penal code. Id. Because of the deadly weapon finding, appellant's state jail felony conviction was punished under section 12.35(c) in the range of a third degree felony. Thus, it appears the judge could not have given community supervision under article 42.12 section 15(a) because appellant was punished under penal code section 12.35(c) rather than section 12.35(a). Assuming, without deciding, that appellant's trial counsel incorrectly advised him the judge could grant community supervision, appellant failed to carry his burden of showing ineffective assistance of counsel because he did not present any evidence that his decision on the punishment election would have been different had his attorney correctly advised him. The court of criminal appeals has directly addressed this issue:
To support a claim of ineffective assistance of counsel where, as in this case, the complaint is that counsel misunderstood the law regarding probation . . ., more must be apparent from the record than trial counsel's mere mistake. There must be evidence that the defendant was initially eligible to receive probation, that counsel's advice to go to the trial judge for sentencing was not given as part of a valid trial strategy, that the defendant's decision to have the judge assess punishment was based on his attorney's erroneous advice, and that the defendant's decision would have been different if her attorney had correctly informed her of the law.State v. Recer, 815 S.W.2d 730, 731-32 (Tex.Crim.App. 1991) (citations omitted, emphasis added). Although decided before the enactment of the state jail felony laws, Recer is instructive in this case. Recer was convicted of burglary of a habitation, with a deadly weapon finding, and sentenced to seven years in prison. Id., at 730. Recer complained her trial counsel was ineffective for not telling her the judge could not grant probation. She claimed if she had been informed, she would not have waived a jury on the issue of punishment. Id., at 731. Under the probation statute in effect at the time, the trial judge could not grant probation where it was shown the defendant used or exhibited a deadly weapon in committing the crime. Id. Before trial, Recer elected to have the judge assess punishment and applied for probation. However, the statement that she had never been convicted of a felony was later crossed out of her application. Id. At the punishment hearing, Recer's counsel erroneously argued the judge could set aside the deadly weapon finding and consider probation. Id. The court of criminal appeals held this error did not establish ineffective assistance of counsel. The record indicated Recer may have had a prior felony conviction and would not have been entitled to probation from the jury. Id., at 732. At the time of the pre-trial election, the only possibility for probation was from the judge. That possibility evaporated when the jury made the deadly weapon finding. Id. Recer did not establish ineffective assistance of counsel because the record did not "reflect that her sentencing election would have been different had she been informed of the legal impact of an affirmative finding [of use of a deadly weapon]." Id. The record before us does not reflect that appellant's sentencing election would have been different even if he had been informed the judge could not offer him community supervision. Appellant did not testify during the guilt/innocence phase of the trial or at the motion for new trial hearing. He did not testify that he would have elected to have the jury sentence him if neither the judge nor the jury could give him community supervision. He has not shown there is a reasonable probability that the jury would have assessed a different punishment. We conclude the trial court did not abuse its discretion in denying the amended motion for new trial. We also conclude appellant's constitutional rights to effective assistance of counsel were not violated. Appellant's issues are resolved against him and the judgments of the trial court are affirmed.