Opinion
No. 05-18-00008-CR
05-31-2018
EX PARTE BRANDY MESHELLE HARRIS
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. WX17-90059-X
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Stoddart
Opinion by Chief Justice Wright
Brandy Meshelle Harris appeals the trial court's order denying relief on her post-conviction application for writ of habeas corpus. In three issues, she contends the trial court erred in declining to conduct a hearing on her application and in denying her claims of actual innocence and ineffective assistance of counsel. We affirm.
STANDARD OF REVIEW
An applicant for post-conviction habeas corpus relief bears the burden of proving his or her claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). In reviewing the trial court's order, we view the facts in the light most favorable to the trial court's ruling, and we uphold the ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). When the underlying conviction results in community supervision, an ensuing post-conviction writ must be brought pursuant to article 11.072 of the code of criminal procedure, and the trial judge is the sole finder of fact. Torres, 483 S.W.3d at 42. In reviewing the trial court's order denying habeas corpus relief, "we afford almost total deference to a trial court's factual findings when they are supported by the record, especially when those findings are based upon credibility and demeanor." Id. We defer to the trial court's ruling on mixed questions of law and fact, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. See Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014). If, however, the trial court's determinations are questions of law, or else are mixed questions of law and fact that do not turn on an evaluation of witnesses' credibility and demeanor, then we owe no deference to the trial court's determinations and review them de novo. Id.; State v. Ambrose, 487 S.W.3d 587, 596-97 (Tex. Crim. App. 2016).
ACTUAL INNOCENCE
In her second issue, appellant contends the trial court erred in denying her claim of actual innocence. Claims of actual innocence based on newly discovered evidence are cognizable on post-conviction habeas writs. Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App. 2006). The claims are divided into two categories: Herrera claims and Schlup claims. Id. at 544-45; see also Schlup v. Delo, 513 U.S. 298, 314-16 (1995); Herrera v. Collins, 506 U.S. 390, 393 (1993). In her writ application, appellant raises a Herrera claim.
A Herrera claim of actual innocence is a bare claim of actual innocence in which the applicant must show (1) by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence and (2) the evidence the applicant relies upon is "newly discovered" or "newly available" meaning it was not known to the applicant at the time of trial and could not have been known to the applicant even with the exercise of due diligence. Brown, 205 S.W.3d at 545.
Establishing a claim of actual innocence is a Herculean task that requires the applicant to overcome the presumption that the conviction is valid. Id. The applicant's proof of innocence must be exceedingly persuasive and must unquestionably establish the applicant's innocence. Ex parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim. App. 2014). The reviewing court must consider "whether the totality of the new evidence of innocence unquestionably establishes that a jury would not have found the defendant guilty in light of the new evidence when weighed against the old evidence establishing guilt." Ex parte Mayhugh, 512 S.W.3d 285, 296 (Tex. Crim. App. 2016). The reviewing court applies a de novo standard of review to answer the question: "[d]oes the applicant's new evidence, viewed in the light most favorable to the habeas court's factual findings and credibility determinations, actually prove, by clear and convincing evidence, that a jury would acquit [the applicant]?" Id.
The "newly discovered evidence" appellant brings forth is a bracelet that she claims to have found after it had been lost for an undisclosed period of time. Appellant contends the recovery of the missing bracelet destroys the "linchpin" of the State's trial evidence against her. To explain the importance of the bracelet, we must briefly summarize the evidence from her trial.
Appellant was charged with theft of property with the value of at least $20,000 but less than $100,000. In a bench trial, the trial court found appellant guilty of the lesser included offense of theft with a value of $1500 or more but less than $20,000. The trial court assessed punishment at two years' confinement in state jail, probated for five years. Appellant was convicted largely on the testimony of the complainant which was summarized in the Court's opinion adjudicating appellant's direct appeal. See Harris v. State, No. 05-14-01228-CR, 2015 WL 6358166 (Tex. App.—Dallas Oct. 22, 2015, pet. ref'd).
The complainant met appellant while shopping at a clothing store where appellant worked. Id. at *1. The complainant hired appellant to prepare a wardrobe book for her showing how to arrange various articles of her clothing, shoes, and accessories into outfits. Id. To prepare the book, appellant visited the complainant's home four or five times and had complete access to her wardrobe and jewelry. Id. The complainant lived in a secured building and had to come downstairs in a private elevator and use a key fob to admit appellant on each visit. Id. During the relevant time period, only the complainant, her housekeeper, and appellant had access to the residence. Id. at *2.
The complainant kept a diamond and platinum tennis bracelet in a locked jewelry box. Id. at *1. Appellant expressed her admiration for the piece. Id. Appellant sometimes wore an inexpensive costume jewelry bracelet with an elastic band that looked somewhat similar to the complainant's bracelet. Id. Appellant was wearing her inexpensive bracelet on February 22, 2012, when she last visited the complainant's home. Id. Because the complainant did not allow anyone to wear shoes in her home, appellant asked the complainant if she could go to the complainant's closet and borrow a pair of socks for her feet. Id. It took longer than the complainant expected, so she went looking for appellant and found her exiting the closet with the socks. Id. Before leaving, appellant told the complainant that she was in debt, asked to borrow money, and asked the complainant if the complainant could refer her to people for more work. Id. The complainant thought appellant seemed in a hurry to leave. Id.
On March 30, 2012, as the complainant packed her things for a move, she noticed the lock on her jewelry box was broken. Id. at *2. While inventorying the box's contents, the complainant discovered her diamond and platinum tennis bracelet was missing and appellant's bracelet had been substituted for it. Id. Although she questioned her housekeeper, the complainant did not believe the housekeeper was responsible for the theft because the complainant had employed her for three years and nothing had ever been stolen. Id. Later that day, appellant emailed the complainant and asked her to loan appellant $13,000 to help with a $26,000 debt. Id.
About a week later, when the complainant confronted appellant about the missing bracelet, appellant proclaimed her innocence but agreed to look for the bracelet. Id. A couple of days later, appellant called the complainant, said she could not find the bracelet, and suggested the housekeeper stole it. Id. Later that day, appellant texted the complainant that she had received a $7,000 bonus from her employer. Id. According to the complainant, the employer later told her that the employer does not give bonuses to employees. Id.
The complainant reported the theft to police on April 10, 2012. Id. The complainant testified she had a videotape of appellant going through her closet on the date of the theft but the tape was lost during her move. Id.
In her writ application, appellant asserted that "[a]fter trial and shortly before this writ was to be filed, [appellant] discovered her tennis bracelet, which she had previously considered lost." In her writ application and now on appeal, appellant contends a reasonable jury would not convict her if it knew that the complainant was either mistaken or being untruthful when she accused appellant of stealing her expensive tennis bracelet by switching it with appellant's inexpensive costume jewelry bracelet. Appellant verified the factual assertions in her writ application, but she did not present any other evidence about the loss and recovery of her bracelet.
The State responds that appellant's bracelet was not newly discovered evidence, we should defer to the trial court's adverse judgment of appellant's credibility, and nothing shows that the "newly discovered" bracelet is the same one appellant wore to the complainant's residence.
In the habeas proceedings, the trial court issued findings noting that the offense was committed in 2012, appellant was indicted in 2013, and the trial took place in 2014. The trial court found appellant's "claim that she recently discovered her missing bracelet over four years after being indicted is not credible." The trial court further found appellant's "current possession of a bracelet does not provide any evidence that [appellant] did not place a different bracelet in the jewelry box to replace the stolen bracelet." The trial court concluded appellant had "failed to demonstrate by clear and convincing evidence that no reasonable juror would have convicted her in light of the discovery of the bracelet."
Viewing the evidence under the appropriate standard, we cannot conclude the trial court abused its discretion in denying appellant relief. We agree with the State that appellant has not established that the evidence is "newly discovered." Appellant did not present any evidence or explanation for how the bracelet was lost or why she could not have found it earlier with the exercise of due diligence. As the trial court pointed out in its findings, there was a considerable period of time between the accusation of a theft, the indictment, and the trial. We cannot conclude appellant has met her burden to show she could not have discovered the missing bracelet earlier with the exercise of due diligence. See Brown, 205 S.W.3d at 545.
Second, we agree with the State that we should defer to the trial court's adverse finding on appellant's credibility. Although the trial court did not conduct a hearing on the habeas application, the same judge presided over both the habeas proceeding and appellant's trial. Appellant filed a motion for new trial and testified at a hearing on the motion. Thus, the trial court had the opportunity to see the complainant testify at trial and appellant testify during the new trial proceedings. Appellant's verified assertion in her writ application is the only evidence put forth to show that she lost her bracelet, that she found her bracelet, and that the bracelet is the one the complainant asserted was left in her jewelry box. Thus, resolution of this matter depends entirely upon an assessment of credibility. The trial court, having had the opportunity to assess the credibility and demeanor of both the complainant's and appellant's testimonies, was in a better position than this court to evaluate the credibility of appellant's alleged new evidence. We therefore defer to the trial court's assessment that appellant's assertions are not credible. See Mayhugh, 512 S.W.3d at 296 (reviewing court generally defers to trial court's findings when trial court in better position to determine witness credibility unless independent review of record shows findings not supported by record.).
Finally, the discovery of the bracelet does not unquestionably establish appellant's innocence. The discovery of the bracelet does not outweigh inculpatory evidence at trial that someone stole the complainant's bracelet and replaced it with a cheap imitation; that appellant was one of two people who had access to the bracelet; that appellant's debts gave her a motive for the theft; that she entered the closet where the bracelet was kept to retrieve a pair of socks and spent more time in the closet than was required for the stated task; that she appeared to want to leave in a hurry; that she lied about receiving a commission from her employer that would explain the possible receipt of a large amount of money; and that there was no evidence showing any motive or suspicious behavior on the part of the other possible suspect. We conclude appellant has not established that her alleged discovery of her bracelet, viewed in the light most favorable to the habeas court's factual findings and credibility determinations, proves by clear and convincing evidence that a reasonable juror would acquit her if the juror knew she had found the bracelet she has brought forward. See id.; Navarijo, 433 S.W.3d at 566-67; see also Herrera, 506 U.S. at 418-19 (concluding newly discovered evidence not persuasive in light of other evidence pointing strongly to petitioner's guilt). We overrule appellant's second issue.
FAILURE TO HOLD A HEARING
In her first issue, appellant contends the trial court erred in failing to hold a hearing on her claim of actual innocence. Appellant concedes that ordinarily the trial court has discretion in determining whether to hold a hearing on an article 11.072 writ application. As the statute provides, "In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection." TEX. CODE CRIM. PROC. ANN. art. 11.072, §6 (b) (West 2015); see also Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.) (article 11.072 does not require trial court to conduct hearing before rendering decision on relief sought).
Appellant does not contend that her claim of ineffective assistance of counsel must be the subject of an evidentiary hearing. See Ex parte Franklin, 310 S.W.3d 918, 922-23 (Tex. App.—Beaumont 2010, no pet.) (collecting cases holding no hearing necessary on 11.072 writs alleging ineffective assistance). In this case, however, citing Franklin, appellant contends the trial court was required to conduct a hearing on appellant's issue of actual innocence based upon newly discovered evidence.
Franklin holds that, under certain circumstances, an 11.072 writ applicant is entitled to an evidentiary hearing when the applicant raises an actual innocence claim. See id. at 921-23. According to Franklin, this right is triggered if an applicant presents evidence that constitutes an affirmative showing of innocence as set forth in Ex parte Brown. See id. at 921-22. Franklin also observed that the trial court was not in an appreciably better position than the reviewing court to evaluate the competing affidavits presented to it because the habeas judge did not preside over the trial. See id. at 921. The Waco Court of Appeals distinguished Franklin in a case where the trial court judge presided over the habeas proceeding. See Ex parte Gonzalez, 323 S.W.3d 557, 561 (Tex. App.—Waco 2010, pet. ref'd) (holding no evidentiary hearing required by article 11.072 to resolve controverted facts if trial judge presiding over habeas proceeding also presided over applicant's trial).
The current case is distinguishable from Franklin in three respects. First, like Gonzalez, the habeas judge also presided over appellant's trial, including the motion for new trial proceedings in which appellant testified. See id.
Second, assuming Franklin does not establish a per se requirement of a hearing in all cases where a claim of actual innocence is asserted, the case for requiring an evidentiary hearing in Franklin was considerably more compelling than the case for requiring a hearing in the present case. The newly discovered evidence in Franklin involved a recantation by the complainant of the allegation that led to the habeas applicant's conviction for aggravated sexual assault of a child. See Franklin, 310 S.W.3d at 920; see also Ex parte Salazar, 510 S.W.3d 619, 628 (Tex. App.—El Paso 2016, pet. ref'd) (declining to impose per se hearing requirement when claim of actual innocence raised, but holding hearing was appropriate under circumstances of case to assess credibility of affirmative exculpatory evidence in form of sworn recantation by child witness where habeas judge did not preside over trial and thus did not have prior opportunity to observe witness's demeanor so as to make credibility determination). Conflicting statements from the complaining witness in a sexual assault case presents a more compelling demonstration of innocence than does the self-serving discovery appellant alleges which does not undermine the central thesis of the State's case that appellant stole the complainant's bracelet and replaced it with a piece of cheap costume jewelry to hide the theft.
Finally, as we have already discussed in reviewing appellant's second issue, we conclude appellant has not brought forward newly discovered affirmative evidence that unquestionably establishes her innocence as required to trigger any type of hearing. See Brown, 205 S.W.3d at 544-46; see also Ex parte Tamayo, No. 02-17-00135-CR, 2017 WL 6047731, at *7-8 (Tex. App.—Fort Worth Dec. 7, 2017, no pet.) (not designated for publication) (no hearing required where proffered evidence not newly discovered nor does it unquestionably establish applicant's innocence).
Because no hearing was required in this case, we overrule appellant's first issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her third issue, appellant contends she received ineffective assistance of counsel. Before addressing the merits of appellant's issue, we first must address the State's threshold argument that the issue should be overruled without regard to the merits because appellant's ineffective assistance complaint was denied on direct appeal.
After trial, appellant timely filed a motion for new trial contending she received ineffective assistance of counsel. After a series of delays, the trial court conducted an evidentiary hearing on appellant's motion. The hearing, however, took place four days after the motion was overruled by operation of law. Thus, on direct appeal, this Court did not consider any of the evidence developed in the hearing and denied relief for lack of evidence. See Harris, 2015 WL 6358166, at *4. The State contends that even though appellant's untimely evidence of ineffectiveness was not considered by this Court, our ruling denying the merits of her claim bars her from raising it again. As support, the State cites Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).
We disagree with the State that Acosta controls this case. Acosta presents the general rule that one may not raise an issue on habeas that was already raised and decided on direct appeal. See id.; see also Brown, 205 S.W.3d at 546 (habeas application ordinarily may not be used to relitigate matters raised and rejected on direct appeal). There is an exception to this general rule for cases where "direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). This exception applies to claims of ineffective assistance of counsel where a habeas applicant uses the habeas proceeding to gather and introduce additional evidence not contained in the direct appeal record. Id.
This Court denied appellant's claim of ineffective assistance because the record from the motion for new trial hearing where the evidence was presented was not properly before the Court. See Harris, 2015 WL 6358166, at *3-4. The testimony from the new trial hearing is now in evidence in the habeas proceeding. Accordingly, we conclude appellant's ineffective assistance claim is the type of claim where direct appeal did not provide an adequate record to evaluate the claim and the claim is now ripe for review after the presentation of additional evidence in the habeas proceeding. See Torres, 943 S.W.2d at 475. We will consider appellant's ineffective assistance issue.
Appellant's writ application indicates that a copy of the reporter's record from the motion for new trial hearing was attached. In fact, it is not attached to the writ application but was placed before the trial court as an exhibit to the State's response. We are mindful that specific allegations of ineffective assistance of counsel rejected on direct appeal are not cognizable in a post-conviction habeas proceeding unless the applicant offers additional evidence in the habeas proceeding to support the specific claim of deficient performance. See Ex parte Nailor, 149 S.W.3d 125, 131-32 (Tex. Crim. App. 2004). Because there is no explanation on the record for why the hearing transcript was not attached to the writ application as represented and the necessary evidence was placed before the trial court and utilized by both parties, we conclude appellant's ineffective assistance claim is cognizable. See id.
Appellant bears the burden of proving counsel was ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To prevail on a claim of ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that the result of the trial would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-89, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant must prove both prongs of the test. Lopez, 343 S.W.3d at 142. The deficient performance must be affirmatively demonstrated on the record and not require retrospective speculation. Id. We strongly presume that trial counsel's assistance fell within the wide range of reasonable professional assistance and that the challenged acts or omissions might be considered sound trial strategy. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). A showing of ineffective assistance requires more than a showing that another attorney might have pursued a different tactic at trial. Id. We judge the totality of trial counsel's representation rather than focusing narrowly on isolated acts or omissions, and the performance must be evaluated from the viewpoint of trial counsel at the time of the representation and not with the benefit of hindsight. Id.
Appellant contends the record of the new trial hearing shows she received ineffective assistance of counsel. In the hearing on appellant's motion for new trial, appellant testified that it was trial counsel's law partner, rather than trial counsel, who interviewed her and gathered the facts of her case. Appellant initially denied having any face-to-face communications with trial counsel before the trial and no other communications except for some brief telephone exchanges about court dates, but later admitted she had spoken to him on occasions when the case was passed to a new setting. Appellant testified she left five or six detailed messages at trial counsel's office asking trial counsel to call her back but he never did.
In her conferences with trial counsel's law partner, appellant expressed a desire to impeach the complainant's credibility with testimony that she had not asked the complainant for money in person but only via email; that she had left abruptly on her final visit because the complainant had showed her an injury inflicted by the complainant's violently abusive husband who was on his way home to pick the complainant up for dinner and appellant did not want to meet him; and that the complainant had come to her place of employment on March 31, 2012, asked her to return for "another session in her closet," and not mentioned the alleged theft of her jewelry. Appellant testified she told the law partner that when the complainant confronted her around April 6th, and told her the complainant possessed a videotape showing appellant going through the complainant's closet, appellant had offered to get her district manager, go to the police department, view the videotape, and take a polygraph examination. Appellant testified she had told the law partner that she had worked for a number of wealthy people both before and after the alleged theft. Appellant testified that none of these credibility matters were brought out at her trial. She had wanted to testify in her own behalf, but the law partner had advised her that it was not a good idea because the prosecutor would "shred" her. Appellant admitted she understood she had a right to testify but chose not to on the advice of counsel.
The State called trial counsel to testify. Trial counsel testified all three attorneys at his firm worked on the pretrial development of appellant's case and he met with her on September 10, 2012 for a case review where the "substance of the trial and the strategy of the trial was determined. . . ." During the case review, trial counsel went over the evidence with appellant, reviewed the law partner's notes, and listened to what she told him before advising her on the trial. Trial counsel testified there were "twelve or so" trial settings and after each one, he or an associate would meet with appellant and give her an update about the case. Because of his busy trial schedule, trial counsel prefers to communicate with clients by text message. He testified he exchanged a number of text messages with appellant. Trial counsel denied that he had inadequate conversations with appellant or that he did not have sufficient time to prepare for trial.
Trial counsel testified appellant's story changed over the two-year period between the case review and the trial. After the case review, appellant told trial counsel about an affair and the alleged domestic abuse by the complainant's husband. Trial counsel did not put on evidence of the complainant's history because he was afraid it would inflame the fact finder. Trial counsel did not put on the evidence that appellant had no criminal history and had worked for big companies before because he did not think it would be allowed into evidence. Trial counsel described these decisions as matters of "pure strategy" on his part. On cross-examination, trial counsel admitted he had a letter in his file purporting to attest to appellant's good character. He testified he did not admit the letter into evidence because it was not verified or certified and would be inadmissible hearsay. When asked if he had called the purported author of the letter to determine if she existed and the letter was genuine or if appellant had forged it, trial counsel replied that he did not want to know the answer to that question.
Regarding the decision not to have appellant testify, trial counsel thought appellant should not be allowed to testify because she changed her "story" over the course of the representation. Trial counsel testified that appellant asked him if she should testify and told him she wanted to testify that the bracelet in the safe was not hers and she did not place a bracelet in the safe. Trial counsel told appellant she had a right to testify and she could, but if she took the stand and testified that the switched bracelet was not hers and she did not put a bracelet in the safe, he would have to re-ask the question, and if she gave the same answer, he would ask the trial court for a break, have the trial court admonish her, and if she persisted in her answer, he would withdraw as counsel. He then had his associate admonish appellant about perjury. At that point, according to trial counsel, "the decision was made" that appellant would not testify. Trial counsel affirmed that this decision possibly prevented appellant from being charged with additional crimes.
After hearing testimony from both appellant and counsel, the trial court denied relief. In overruling the motion for new trial, the trial court stated it remembered the trial very well. In its findings of fact, the trial court found appellant testified at the motion for new trial hearing that she understood she had a right to testify at trial. The trial court further found that appellant, acting on trial counsel's advice, made the decision not to testify at trial. Regarding the specific evidence appellant alleges was not raised, the trial court found that the evidence regarding domestic abuse of the complainant was "irrelevant to the case." The trial court found the other decisions of trial counsel regarding what testimony to introduce were a matter of trial strategy crafted "following a thorough investigation of the facts by trial counsel." The trial court found appellant had failed to show trial counsel's representation fell below an objective standard of reasonableness and thus the trial court concluded appellant received effective assistance of counsel.
Appellant contends trial counsel was ineffective because he failed to bring out four evidentiary matters in her trial: (1) evidence explaining appellant knew the complainant's husband had abused her and appellant left the complainant's residence in a hurry on the day of the alleged offense because she did not want to meet the husband who was coming over to pick up the complainant for dinner; (2) evidence that on March 31, 2012, the day after the complainant discovered her bracelet missing, she had shopped at the store where appellant worked and did not confront and accuse appellant of the theft; (3) evidence that, when confronted by the complainant about the theft and the existence of a videotape showing the offense, appellant offered to summon her district manager, go to the police station, review the videotape, and take a polygraph test; and (4) evidence that appellant had worked for other wealthy people without incident. Appellant contends trial counsel's explanation for these failures—attributing them to trial strategy—cannot be justified because trial counsel did not perform an adequate investigation of the facts and law to entitle him to rely upon his strategic choices.
The State responds that the decisions appellant questions would have required her testimony and were trial strategy formulated in a case where trial counsel's client changed her story and might, if called to the stand, commit perjury. Moreover, the State argues, even if appellant did not deliver perjurious testimony, trial counsel believed appellant would be a poor witness and be "shredded" on cross-examination. As evidence of how poor a witness appellant might be, the State points to her testimony during the new trial hearing where she initially denied ever meeting trial counsel or speaking to him before trial except for some telephone calls about settings, but then later admitted she had spoken to him in person on occasion when her case was passed for trial. The State points out trial counsel explained that he did not put on evidence of the complainant's husband's domestic abuse because he was concerned such evidence would make the complainant even more sympathetic.
The trial court found appellant chose not to testify, the domestic abuse evidence was immaterial, and the rest of appellant's complaints fell within the protected realm of sound trial strategy. We agree.
Trial counsel's stated reason to appellant that she should not testify—that trial counsel thought the prosecutor would "shred" her on cross-examination and he could not assist appellant in putting on perjured testimony, coupled with appellant's testimony that she understood her right to testify and she had accepted trial counsel's advice not to testify, provides sufficient support for the trial court's finding that appellant voluntarily surrendered her right to testify. Without her testimony, appellant does not show that trial counsel could have put on other evidence to show her uneventful work with other wealthy clients or her explanation for why she was in a hurry to leave. We cannot agree with appellant that trial counsel's explanations for not raising the complainant's alleged history of domestic abuse was not sound trial strategy. To the extent trial counsel did not explain why he did not cross-examine the complainant about her March 31st visit to appellant's place of employment, highlight further the complainant's testimony that appellant had denied committing the theft, or try to admit into evidence a letter attesting to appellant's good character, we are unpersuaded that any of these omissions represent unsound trial strategy or constitute the type of errors that would detract from the presumption that appellant received reasonably professional representation. See Jimenez, 364 S.W.3d at 883.
Appellant's assertion that trial counsel did not adequately investigate her case is rebutted by evidence in the record. Trial counsel testified he reviewed appellant's case, his partner's notes, and sat down with appellant for a case review. The trial court, sitting in a position to evaluate the credibility and demeanor of both appellant and trial counsel, apparently did not find appellant's account credible. We defer to the trial court's assessment. See Torres, 483 S.W.3d at 42 (reviewing court in 11.072 offers almost total deference to trial court's fact findings supported by record when findings are based on credibility and demeanor).
Viewed in the light most favorable to the trial court's ruling and with the proper deference to the trial court's findings and assessment of credibility, we conclude appellant has not met her burden to show counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88; Lopez, 343 S.W.3d at 142. Appellant's failure to prove one prong negates the need to consider the other prong. See Strickland, 466 U.S. at 697; Lopez, 343 S.W.3d at 144. We overrule appellant's third issue.
Having overruled all of appellant's issues, we conclude appellant has not shown the trial court abused its discretion in denying relief on her writ application. See Torres, 483 S.W.3d at 43; Kniatt, 206 S.W.3d at 664.
We affirm the trial court's order denying relief on appellant's application for writ of habeas corpus.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180008F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. WX17-90059-X.
Opinion delivered by Chief Justice Wright. Justices Myers and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 31, 2018.