Opinion
No. 05-11-01244-CR
01-27-2012
EX PARTE MICHAEL FREELAN SWANHORST
AFFIRM; Opinion Filed January 27, 2012
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. W219-810008-07
NUNC PRO TUNC OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Lang
Michael Freelan Swanhorst appeals the trial court's order denying his application for writ of habeas corpus. In a single issue, appellant contends the trial court's order and his conviction should be reversed and the case remanded for a new trial because he was deprived of his Sixth Amendment right to effective representation of counsel. Finding no abuse of the trial court's discretion, we affirm the order denying relief.
Factual and Procedural Background
The facts of the case are set out at length in this Court's opinion on direct appeal. See Swanhorst v. State, No. 05-08-01550-CR, 2010 WL 703173 (Tex. App.-Dallas March 2, 2010, pet. ref'd) (not designated for publication). To summarize, arresting officer Shawn Marthiljoni stopped appellant shortly before midnight on December 19, 2006 after observing him turn out of a restaurant driveway without illuminated headlights, drive toward a concrete road median, and stop his vehicle for about five seconds perpendicular to the roadway blocking two lanes of traffic. Marthiljoni testified appellant had bloodshot eyes, slurred speech, and could not follow instructions well enough to perform sobriety tests. Appellant handed Marthiljoni his license without difficulty and Marthiljoni did not note in his report smelling an odor of alcohol on appellant. Appellant told Marthiljoni he had "practically nothing" to drink.
After appellant was arrested and taken to the police station, he performed and failed the HGN, walk-and-turn, and one-leg stand sobriety tests, but did complain he had a football injury. When asked again if he had been drinking, appellant told Marthiljoni he had nothing to drink. Appellant refused to provide a breath sample for testing, but did offer to provide a blood sample. Marthiljoni concluded appellant did not have the normal use of his physical and mental faculties due to the introduction of alcohol into his body.
Videos shot at the scene of the arrest and in the police station were admitted into evidence and viewed by the jury. On the video shot at the police station, appellant tells the officer that the only medication he was taking was aspirin and that he was undergoing treatment for depression with his last doctor visit occurring six weeks before the date of the offense.
Appellant did not testify at trial. Instead, counsel cross-examined Marthiljoni to elicit alternative explanations for each apparent sign of intoxication and to question the validity of the sobriety testing.
The jury convicted appellant of felony driving while intoxicated. The trial court assessed a negotiated punishment of eight years' imprisonment, probated for five years. Appellant's conviction was affirmed on appeal.
Appellant filed his application for writ of habeas corpus alleging counsel rendered ineffective assistance by failing to investigate appellant's comment to Marthiljoni that he was being treated for depression. Although appellant stated on the video, and later to counsel during counsel's investigation, that he had not been taking any medication other than aspirin at the time of the offense, he contends counsel should have asked him about his recent medical history. Had counsel pursued appellant's medical history, he would have discovered that appellant had recently stopped taking Effexor XR, an antidepressant, and that eighty percent of patients who stop taking this drug experience Effexor XR Discontinuation Syndrome (EXDS), a drug withdrawal syndrome that mimics the effects of alcohol intoxication. Appellant asserts counsel should have consulted with, and called to testify, a psychopharmacologist who could have provided evidence about EXDS.
Appellant submitted an affidavit from Dr. F. Gary Mears, an expert in neuropsychology and psychopharmacology, who explained that discontinuing Effexor XR can degrade the performance of the cerebellum, which controls coordination and movement. Mears opined that appellant's self- reported date of discontinuing the medication, December 15th or 16th, 2006, meant his arrest date lay within the time period when appellant was vulnerable to EXDS. Mears further averred that the packaging insert that accompanies Effexor XR warns against suddenly stopping the medication and lists the following possible symptoms of EXDS: loss of coordination or balance; mental or mood changes; numbness; dizziness; increased drowsiness; and confusion.
Appellant's medical records show that on November 8, 2006, his physician, Richard E. Cash, M.D., directed him to gradually wean himself off of Effexor XR by cutting his prior dose of 150 mg. in half for two weeks and then again halving the dose to 37.5 mg. for one week. In his own affidavit, appellant avers that he did not follow instructions exactly as directed, instead taking no medication for four days and then taking his usual 150 mg. dose from November 12, 2006 to December 3, 2006. He then dropped his dose from 150 mg. to 75 mg. for the period between December 4th to December 15th. He quit taking the medication entirely on or about December 16, 2006. During his examination with Dr. Mears, on March 28, 2011, appellant reported that when he stopped taking Effexor XR, he "felt an odd dizzy feeling....more than just feeling sleepy. The feeling involved confusion, lack of coordination, and vertigo...."
Appellant averred he had told counsel he had only one drink at the restaurant and was not intoxicated. Appellant could not recall whether counsel asked him if he was taking any medications before his arrest. He did not tell counsel about his cessation of use of Effexor XR. He admitted counsel had counseled him about his defense, hired an expert to evaluate the videotape, and "became aware of various details and used those details during [appellant's] trial to support a conclusion that the District Attorney's evidence was not reliable and that [appellant] was not intoxicated." Appellant further admitted that he believed at the time of trial that counsel was adequately prepared for trial.
Trial counsel also filed an affidavit in connection with appellant's writ application. Counsel stated he had practiced DWI defense exclusively since 1997, had attended "the most advanced scientific seminars on DWI defense offered in the United States," that EXDS had not been mentioned or discussed in any of the seminars he attended, and that he was completely unfamiliar with EXDS until it was explained to him by appellate counsel. Counsel averred that attorneys in Collin County do not discuss the cessation of medication in client interviews. Counsel stated he was quite familiar with the effects of medications and their withdrawals and had personally used Effexor at one point after his representation of appellant. He had been advised to gradually lower his dosage when he was stopping it and that physicians always prescribe gradual withdrawal for all anti-anxiety medications.
Counsel asserted that appellant had told counsel that he had consumed only one alcoholic drink and did not feel he was intoxicated when he was arrested. Appellant told counsel that he thought his actions were due to lack of sleep. Counsel believed appellant's actions at the time of the arrest resulted from lack of sleep and the presence of high winds at the time of the arrest. Counsel stated he had asked appellant if he was taking any medications on the night of the offense but did not ask about what medications he had taken in the past. Counsel related that appellant never told him about any medications he was taking nor did appellant mention experiencing dizziness, confusion, vertigo, or lack of coordination in the days or hours before his arrest. Counsel admitted he had made no investigations into appellant's medical or psychological history because appellant did not raise any physical or psychological complaints.
Counsel averred that if he had known about EXDS he would have presented the defense to the jury and it might "possibly" have resulted in appellant's acquittal. Counsel stated it was likely that one or more jurors would be taking medication of this type and find the theory persuasive. Nevertheless, counsel stated he did not believe his representation of appellant was deficient "by not asking questions about something I didn't know even existed."
After reviewing the evidence submitted on appellant's writ application, the trial court denied relief and entered a lengthy set of findings of fact and conclusions of law. The trial court generally found as fact the averments in trial counsel's affidavit. The trial court found appellant's lack of sleep and high winds were "plausible, common-sense explanations for [appellant's] conduct" and further, that another plausible explanation for appellant's actions was his actual intoxication, especially in light of his two prior DWI convictions in Texas and admission he had been drinking. The trial court found appellant had never volunteered information about his Effexor XR use to trial counsel, never mentioned having any symptoms of EXDS in the days or hours before his arrest, and never conveyed to trial counsel "information about his general health at the time of his arrest that was pertinent to the defense he now alleges counsel was deficient for not raising." Regarding appellant's proof of his claims, the trial court found appellant had failed to produce: evidence showing that it is a general practice for criminal defense counsel to ask their clients about cessation of medication at or near the time of a DWI arrest; evidence from an expert in criminal defense that a reasonable attorney would have discovered and presented an EXDS defense; or evidence that any guidelines or materials from seminars advise defense attorneys to ask their clients whether they have stopped taking medication around the time of a DWI arrest.
Moreover, regarding the second "prejudice" prong of the Strickland standard, the trial court found there was no evidence appellant was ever diagnosed with EXDS; he would have had to testify to present the defense and such testimony was ill-advised because he would be cross-examined about his prior DWI arrests; counsel opined he might not have withstood a thorough cross-examination; he would have had to admit he had a drink shortly before his arrest; and the jury would have been able to compare his courtroom speech, gait, and mannerisms to what appeared on the video.
The trial court also found there was evidence on the record suggesting appellant's EXDS defense was "not genuine." Among other factors, the trial court found appellant would have remembered before trial that he was experiencing the withdrawal symptoms and informed Marthiljoni, counsel, and his doctor, that he was experiencing vertigo, dizziness, and confusion. The trial court pointed out that there is no evidence except appellant's averments showing what symptoms he experienced and how and when he weaned himself from Effexor XR.
The trial court also found it unlikely appellant was actually experiencing EXDS. The trial court points out appellant's affidavit describes his symptoms generally but does not state he was suffering them at the time of his arrest. Appellant has never been diagnosed with EXDS nor could Mears state with medical certainty that appellant had the syndrome. The trial court noted appellant managed to get through airport security, board a plane, rent a car, and attend a conference that day. Furthermore, even if appellant did deviate from his physician's instructions on how to discontinue Effexor XR, he still tapered off his dosage, making it less likely he was suffering from EXDS at the time of the offense. Finally, the trial court found that EXDS did not explain much of the evidence at trial suggesting that alcohol intoxication was the explanation for appellant's behavior.
After making its findings, the trial court concluded appellant had not met his burden under either prong of Strickland. The trial court specifically concluded that because appellant did not tell counsel about his symptoms, counsel had no reason to know EXDS existed or that it applied to appellant, and thus he was not deficient in failing to present an EXDS defense.
Standard of Review
An applicant for habeas corpus relief must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court's decision to grant or deny relief, we view the facts in the light most favorable to the trial court's ruling and we will uphold that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). In conducting our review, we afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford the same deference to the trial judge's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Peterson, 117 S.W.3d at 819. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id.
Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011), cert. denied, 79 USLW 3727, 131 S.Ct. 3073 (2011). To satisfy his burden under the first prong of the test, an applicant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and might be considered sound trial strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The reasonableness of counsel's performance is judged under prevailing professional norms. Strickland, 466 U.S. at 688. Our review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813. Under the second prong of the test, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
Application Of Law To Facts
Appellant contends the trial court erred in denying relief on his writ application because the absence of an odor of alcohol coupled with appellant's videotaped statement that he was undergoing treatment for depression placed counsel on direct notice to inquire further about appellant's medication history, consult with a psychopharmacologist, and discover the EXDS defense. Had counsel conducted a proper investigation and discovered the EXDS defense, counsel concedes he would have used it and it would possibly have resulted in an acquittal. Accordingly, appellant contends, he has shown he received ineffective assistance of counsel.
The State acknowledges counsel has a duty to investigate, but contends such duty requires only reasonable efforts. The State supports the trial court's finding that trial counsel was not on notice to investigate EXDS, contending that the facts appellant relies upon as notice must be judged in the context of what counsel knew, the information appellant relayed to counsel, and without the benefit of hindsight. Finally, the State contends counsel's statement that EXDS could "possibly" have resulted in an acquittal does not satisfy the prejudice prong of the Strickland standard, especially in light of the trial court's findings that appellant might have damaged his case by testifying and that his claim of suffering from EXDS lacks credibility. We agree with the State that appellant cannot satisfy either prong of Strickland.
As authority for his contention that counsel's performance was deficient for failing to discover and raise EXDS as a defense, appellant relies principally upon Ex parte Duffy, 607 S.W.2d 507, 519 (Tex. Crim. App. 1980). In Duffy, however, the psychiatric defense counsel failed to raise, among many other deficiencies in the representation, was relayed to counsel by the defendant's father, who told counsel that the defendant was undergoing psychiatric care, gave counsel the psychiatrist's name, and relayed that the psychiatrist was available to testify on the defendant's behalf. See Duffy, 607 S.W.2d at 511. In appellant's case, in contrast, counsel was given no information that appellant was taking Effexor XR, that he had stopped taking it recently, that a discontinuation syndrome existed, or that appellant was suffering any of the symptoms of EXDS.
Instead of Duffy, we turn to the language of Strickland for guidance to resolve appellant's claim that counsel rendered ineffective assistance by failing to investigate and present a defense:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.
See Strickland, 466 U.S. at 690-91. Appellant presented no evidence to the trial court, nor any authority to this Court, showing that a reasonable attorney practicing DWI criminal defense, on the evidence in this record, would ask about medication history, would investigate whether a client in appellant's circumstances might be suffering from an unusual medical condition or that a decision not to investigate a client's medication history would be objectively unreasonable. The evidence before the trial court showed that counsel had never heard of the syndrome, had never heard of it being mentioned in the numerous seminars counsel had attended on DWI defense, and that attorneys in Collin County do not generally ask their DWI clients about their medication history.
Trial counsel's investigation showed appellant was not taking any medication nor complaining of any symptoms that would suggest medication was a plausible explanation for his actions on the night of the offense. In his statements to Marthiljoni and his interview with counsel, appellant did not mention feeling dizzy or experiencing vertigo, loss of coordination, or confusion at the time of the offense. To the contrary, appellant admitted, and the evidence showed, he had been drinking, was sleep deprived, was performing tests on a windy night, and had an injury that might have affected his balance.
Thus, we cannot conclude the trial court abused its discretion in making findings that it was reasonable for trial counsel to rely upon the plausible, common-sense explanations for appellant's conduct and not investigate whether appellant was suffering from an undisclosed medical condition. We likewise conclude the trial court did not abuse its discretion in concluding that counsel was not deficient for failing to investigate and present a defense that appellant's apparent intoxication resulted from EXDS. See id.; see also Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (concluding counsel was not ineffective for failing to investigate alleged alibi witnesses whom the defendant could not describe with particularity). We conclude appellant has not met his burden under the first prong of the Strickland standard. See Strickland, 466 U.S. at 687-88; Martinez, 330 S.W.3d at 900.
Furthermore, we agree with the State that counsel's admissions that he would have presented an EXDS defense had he been aware of it and that it might possibly have resulted in an acquittal is not sufficient to satisfy appellant's burden under the second prong of Strickland. In this case, the trial court found appellant's EXDS defense would depend critically upon his testimony because there was no other evidence to suggest he was suffering from the syndrome. The trial court found appellant testifying in his defense would have detrimental effects on his defense in that it would allow the State to cross-examine him about his drinking, his previous DWI convictions, his medication history, and it would allow the jury to compare his demeanor, speech, gait, and accent to what they observed on the video. The trial court further found appellant's contention that he was suffering from EXDS to not be credible in light of his failure to complain of any symptoms to the arresting officer, counsel, or his doctor until after the trial. Nothing in the record or appellant's argument suggests the trial court's findings should be disturbed on appeal. See Amezquita, 223 S.W.3d at 367 (providing a reviewing court should defer to the trial court's factual findings supported by the record). Thus, we further conclude the trial court did not abuse its discretion in concluding appellant failed to show that but for counsel's deficient performance, the result of the trial would have been different. See Strickland, 466 U.S. at 694; Martinez, 330 S.W.3d at 900-01.
Having concluded appellant has not shown by a preponderance of the evidence that he received ineffective assistance of counsel, we conclude the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. See Scott, 190 S.W.3d at 673.
We affirm the trial court's order denying appellant's writ application.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111244F.U05