Opinion
NO. 01-17-00576-CR
07-03-2018
KEVIN DEWAYNE HALEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case No. 1501829
MEMORANDUM OPINION
Appellant, Kevin Dewayne Haley, pleaded guilty without an agreed recommendation to the third-degree felony offense of assault-family violence, second offender. Following completion of a pre-sentence investigation (PSI) report, the trial court held a hearing and assessed appellant's punishment at six years' confinement. In his sole point of error, appellant contends that he received ineffective assistance of counsel. We affirm.
Background
On January 24, 2016, appellant approached D'naya Brown and her cousin at a club in Houston, Texas. Appellant, with whom Brown had been in a relationship for three months, became angry with Brown for warning her cousin about appellant. Appellant began arguing with Brown and punched her in her left eye and lip with his fist. After Brown left the club, she reported the assault to the Houston Police Department.
On March 23, 2017, appellant pleaded guilty to the charged offense of assault-family violence, second offender, without an agreed recommendation. The trial court deferred entering a finding of guilt pending completion of a PSI report. On May 25, 2017, the trial court conducted a hearing and sentenced appellant to six years' confinement. This appeal followed.
Discussion
In his sole point of error, appellant contends that his trial counsel rendered ineffective assistance during the PSI hearing. Specifically, he argues that counsel failed to submit any mitigating evidence and that, but for trial counsel's deficient performance, the results of the proceeding would have been different.
A. Standard of Review and Applicable Law
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (noting that applicable standard for ineffective assistance of counsel claim is same in state and federal cases). Under the Strickland two-step analysis, a defendant must demonstrate that (1) his counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson, 9 S.W.3d at 813. "[A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). When the record is silent, we may not speculate to find trial counsel ineffective. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance is within a wide range of reasonable professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will "find [a] counsel's performance deficient only if the conduct [is] so outrageous that no competent attorney would have engaged in it." Andrews, 159 S.W.3d at 101. "When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (en banc)).
The decision whether to present witnesses is largely a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd); Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). "[A]n attorney's decision not to present particular witnesses at the punishment stage may be a strategically sound decision if the attorney bases it on a determination that the testimony of the witnesses may be harmful, rather than helpful, to the defendant." Shanklin, 190 S.W.3d at 164. However, a failure to uncover and present mitigating evidence cannot be justified as a tactical decision when defense counsel has not conducted a thorough investigation of the defendant's background. Wiggins v. Smith, 539 U.S. 510, 522, 123 S. Ct. 2527, 2535 (2003); Rivera v. State, 123 S.W.3d 21, 31 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). Absent such evidence, we presume trial counsel's decision not to present any mitigating evidence was rational and strategic. See Ex parte Kunkle, 852 S.W.2d 499, 506 (Tex. Crim. App. 1993) (en banc).
B. Analysis
Appellant contends that trial counsel was ineffective because he failed to present any mitigating evidence during the PSI hearing. Specifically, he argues that his attorney made statements during closing argument that were unsupported by evidence, and that he failed to present any witness testimony or letters of reference to be included in the PSI report.
The record reflects that, during closing, trial counsel acknowledged to the court that appellant had a number of prior convictions but argued that appellant had never been given the opportunity for rehabilitation. Counsel also stated that appellant's father was killed when appellant was only four years old and that appellant had three young children of his own. The PSI report, which the State entered into evidence, supported each of these statements. The report notes the disposition of each of appellant's prior cases, that appellant's father "was killed during a drug related burglary" when appellant was four years old and that he was raised by his maternal grandmother, and that appellant has three young children.
Appellant also argues that trial counsel was ineffective because he failed to call any witnesses or submit letters of reference to be included in the PSI report. Citing Lopez v. State, appellant argues that "[t]here is prejudice when trial counsel brings forward no witnesses where some exist or potentially exist," because the fact finder cannot consider mitigating evidence to offset the aggravating factors presented by the State. 462 S.W.3d 180, 188 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Lopez is distinguishable from the case before us. In Lopez, the defendant filed a motion for new trial and the record from the hearing on the defendant's motion was before the court. See id. at 182. The record included, among other evidence, two letters from individuals who averred that they would have testified favorably for the defendant had they been contacted by counsel, but they were never contacted. See id. at 186. Here, appellant did not file a motion for new trial. There is nothing in the record showing that appellant's trial counsel failed to perform due diligence investigations of potential defense witnesses, or that that there were witnesses available to testify on his behalf at the punishment hearing. See Beard v. State, 243 S.W.3d 783, 785 (Tex. App.—Amarillo 2007, pet. ref'd) (concluding that murder defendant failed to establish that trial counsel rendered ineffective assistance in failing to present defendant's relatives as mitigation witnesses at punishment hearing where there was no evidence as to why counsel failed to call witnesses or that favorable mitigating evidence actually existed); see also Brown v. State, No. 08-12-00026-CR, 2014 WL 172521, at *4 (Tex. App.—El Paso Jan. 15, 2014, no pet.) (not designated for publication) (noting that reviewing court presumes trial counsel's decision not to present mitigating evidence was rational and strategic absent evidence establishing that defendant's attorney had failed to perform due diligence investigations of potential defense witnesses before deciding not to present any mitigating evidence).
Lopez is further distinguishable because the PSI report in that case contained information indicating that the defendant had a troubled background, including intellectual deficiencies that impacted his general intelligence, school performance, and decision-making, and trial counsel failed to highlight even one piece of this information to the trial court. See Lopez, 462 S.W.3d at 189. Here, in contrast, trial counsel emphasized mitigating evidence from the PSI report during closing, namely, that appellant had not had an opportunity for rehabilitation, that he had lost his father when he was four years old, and that appellant had three young children.
Under these circumstances, we presume that trial counsel's decision to not present any mitigating witnesses or letters of reference at punishment fell within the bounds of trial strategy permitted by Strickland. See Ex parte Kunkle, 852 S.W.2d at 506. Appellant's claim fails the first prong of the ineffective assistance of counsel test, and we therefore need not address prejudice on this issue. See Williams, 301 S.W.3d at 687. Accordingly, we overrule appellant's sole point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Bland, Lloyd, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).