Opinion
No. 06-11-00265-CR
07-25-2012
WELDON PATRICK GENTRY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 24327
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Convicted of "driving while intoxicated, third offense, repeat offender," and sentenced to ten years' imprisonment, Weldon Patrick Gentry appeals, asserting only ineffective assistance of counsel. Gentry argues that his counsel was ineffective during the guilt/innocence portion of his trial because counsel allowed Gentry "to stipulate to key evidence against him," failed to cross-examine one of the State's witnesses, failed to object to "damaging hearsay," and did not present any argument to the jury. Gentry further argues he received ineffective assistance during the punishment phase of trial because counsel allowed him "to stipulate to all aggravating evidence presented by the State," failed to pursue the issue of Gentry's mental health problems, and did not present any extenuating or mitigating evidence. Because ineffective assistance of counsel has not been shown to have occurred during either stage of trial, we affirm the trial court's judgment.
Any allegation of ineffectiveness of counsel must be firmly founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the record received by this Court, which does not contain defense counsel's reasons for his actions, Gentry bears the burden of proving, by a preponderance of the evidence, that his counsel was ineffective. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Rarely will a reviewing court be provided with a record capable of providing an evaluation of the merits of the claims involving ineffective assistance on direct appeal. Thompson, 9 S.W.3d at 813; Fuller v. State, 224 S.W.3d 823, 828-29 (Tex. App.—Texarkana 2007, no pet.). "In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect" the reasoning of trial counsel. Thompson, 9 S.W.3d at 813-14. As demonstrated below, this is such a case.
We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether Gentry received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).
First, Gentry must show that counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms. Strickland, 466 U.S. at 687-88. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Id. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of Gentry's counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.— Texarkana 2005, pet. ref'd).
The second Strickland prejudice prong requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88.
Gentry contends that, during the guilt/innocence phase of trial, counsel's failure to cross-examine State witness Deputy Jonathan Smith "def[ied] explanation." Smith testified that he was dispatched to the scene of a one-vehicle accident where he "noticed a full-size van into the guardrail." Smith observed a man who had "glassy, blood-shot eyes," "unsteady balance," and the "odor of an alcoholic beverage on his breath." The man, Gentry, identified himself as the driver and sole occupant of the van.
The decision not to cross-examine a witness is most often considered a matter of trial strategy developed as a "result of wisdom acquired by experience in the combat of trial." Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) (quoting Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973); see Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992); Smith v. State, 968 S.W.2d 490, 491 (Tex. App.—Texarkana 1998, no pet.). It will not prove ineffective assistance, particularly when the "[a]ppellant fails to show what could have been achieved by further cross-examination." Matthews v. State, 830 S.W.2d 342, 347 (Tex. App.—Houston [14th Dist.] 1992, no pet.). It was well within the realm of sound trial strategy for Gentry's counsel to decide not to cross-examine Smith during this bench trial. We will not re-examine this decision through hindsight without the benefit of evidence explaining counsel's reasoning.
Next, Gentry complains that counsel failed to lodge a hearsay objection to the following testimony given by Officer James Blount: "A subject was there. I believe he was with the volunteer fire department, said he was a witness -- was the first on the scene to the accident, said he had -- stated that the driver had got out, talked to him. He hung around with him for awhile." Gentry argues that this "damaging testimony" was "the only direct evidence that Appellant had been inside the wrecked vehicle," "other than Appellant's own out-of-court statements."
Smith and Blount both testified that Gentry identified himself as the driver of the van. Gentry does not argue that his own "out-of-court statements" constituted inadmissible hearsay, presumably because they were nonhearsay admissions by a party opponent. TEX. R. EVID. 801(e)(2). The trial court was also able to observe the video recording of the arrest depicting Gentry. Because the record is silent on counsel's reasoning, we "cannot adequately reflect [upon] the motives behind trial counsel's actions." Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Counsel could have simply determined that an objection to Blount's testimony would have no effect given the strength of the other evidence identifying Gentry as the driver. We assume his decision not to object was part of a reasonable trial strategy.
Further, Gentry argues that his counsel was ineffective because he allowed Gentry to stipulate to "two prior [DWI] felony convictions which gave the court jurisdiction, the prior [DWI] felony conviction which provided the basis for enhancement to a 2nd degree felony," and "three other prior convictions." He also takes issue with the allowance of a stipulation that Gentry voluntarily "consented to the giving of a breath specimen and that the results of the Intoxilyzer were over the legal limit."
At trial, Gentry pled true to all of the above-mentioned prior convictions as a result of the trial court's questioning. He signed a stipulation of evidence and judicially confessed that he committed each of the prior convictions. The State introduced judgments of all prior convictions into evidence. Gentry does not allege that counsel failed to advise him about the consequences of his pleas of true to prior convictions or that his pleas would have been different if properly admonished. When the record does not reveal what advice was given by counsel, an appellate court "cannot presume that the decisions originated with the attorney and were not the result of acquiescence to the client's wishes." Pinkston v. State, 744 S.W.2d 329, 332 (Tex. App.— Houston [1st Dist.] 1988, no pet.). We presume that counsel's advice concerning Gentry's pleas were based on reasonable professional judgment. Additionally, we note that counsel objected to the admission of all stipulations which did not "relate to the jurisdictional issues."
Gentry's written stipulation of evidence contained an admission "that on or about April 12, 2011, Defendant voluntarily consented to providing a specimen of his breath for which the Intoxilyzer results were 0.110 and 0.094." Contrary to Gentry's assertions in his brief, his trial counsel objected to the inclusion of this stipulation into evidence since it did not relate to the trial court's jurisdiction. Also, Blount, a certified intoxilyzer operator, testified that Gentry consented to the breath test and that the results of that test showed that Gentry was over the legal blood-alcohol limit. Because counsel objected, Gentry cannot meet the first Strickland prong. Due to Blount's testimony, Gentry cannot meet the second Strickland prong.
Gentry also claims that his attorney was ineffective because he "presented no witnesses or evidence." The record is silent as to why Gentry's trial counsel did not present a witness to testify in Gentry's favor. We may assume failure to present evidence was due to any strategic motivation that can be imagined, including the possibility that no favorable evidence could be presented. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485-86 (Tex. App.— Texarkana 2005, pet. ref'd). "The general rule is that the failure to call witnesses does not constitute ineffective assistance of counsel without a showing that the witnesses were available to testify and that their testimony would have benefitted the defendant." Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref'd) (citing Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986)); see Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.—Texarkana 2002, pet. ref'd). No suggestion is made here that any witnesses or evidence would have benefited Gentry.
Gentry does not complain that counsel failed to interview any witnesses.
Additionally, Gentry complains that counsel failed to present any closing argument. Counsel's decision not to present a closing statement in this bench trial could have been a matter of trial strategy, given that no closing argument was presented by the State. See Ransonette v. State, 550 S.W.2d 36, 41 (Tex. Crim. App. 1976). We will not, on appeal, second-guess the choice to forego closing argument absent a record that clarifies counsel's reasoning.
For the foregoing reasons, Gentry's ineffective assistance claims relating to the guilt/innocence phase of his trial are overruled.
No evidence was presented by counsel during the punishment phase. However, counsel argued:
Your Honor, there is an examination on him. There was at least grounds that he had mental problems. He was found to be competent to stand trial and not insane at the time of the offense. But he clearly has some mental medical problems. His main concern he's voiced to me is that he believes he has a brain tumor . . . .A competency evaluation, performed by Dr. David Bell, informed the court that Gentry attended regular classes in school, and "did not have any mental health treatment," although he could be "depressed and suicidal at times, when circumstances were bad." Bell concluded that Gentry was "an alcoholic" who was not "mentally retarded or mentally ill." The report also stated that Gentry experienced "a lot of memory loss," "constant headaches," which "could be and most likely are related to alcohol abuse." It is possible that these headaches were interpreted by Gentry to be a brain tumor.
. . . .
He is mainly wanting to receive medical help for that particular problem, and we ask for the -- for a finding of punishment on the lower end of the scale. . . .
Gentry argues that counsel was ineffective because he failed to bring forth evidence of Gentry's mental illnesses or any other mitigating evidence. An attorney representing a criminal defendant is charged with making an independent investigation, including seeking out and interviewing potential witnesses. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Here, however, the record does not suggest that any formal diagnosis of any medical or mental illness was entered. "We cannot . . . assume that because a record is silent as to the depth of an attorney's investigation . . . [that] he made no such investigation." Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); see Lockett v. State, 874 S.W.2d 810, 817 (Tex. App.—Dallas 1994, pet. ref'd). It is possible that counsel found no mitigating evidence, including any evidence which would support Gentry's claims of mental illness. Accordingly, Gentry cannot show by a preponderance of the evidence that his counsel was ineffective in failing to present mitigating evidence. See Brown v. State, 129 S.W.3d 762, 767 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
Other than a nondiagnosed mental illness, Gentry does not suggest that any other mitigating evidence would have been available.
Gentry, again, claims that counsel was ineffective during the punishment stage because he "allowed Appellant to stipulate to three prior convictions." We will assume counsel's decision to "allow" the stipulation was pursuant to Gentry's wishes absent a record challenging this assumption. Pinkston, 744 S.W.2d at 332. It is also ordinarily reasonably easy for such prior convictions to be proven, and counsel could have believed that that stipulation may have lessened the emphasis placed on those convictions.
We overrule Gentry's ineffective-assistance claims relating to the punishment phase of his trial.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
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