Opinion
NO. 12-11-00144-CR
04-30-2012
JACQUES TRENT HAMILTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 3RD JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Jacques Trent Hamilton was convicted of assault on a public servant and sentenced to seven years of imprisonment and a fine of five thousand dollars. In one issue, Appellant argues that his trial counsel provided ineffective assistance. We affirm.
BACKGROUND
Appellant was indicted by an Anderson County grand jury for the offenses of assault on a public servant and tampering with or fabricating physical evidence. Officer Brandon Dobbs of the Palestine Police Department testified that on July 16, 2010, he attended a shift briefing in which he received information about individuals with active warrants. The list contained the identifying information and photograph of each listed person. Appellant was included in this list.
See TEX. PENAL CODE ANN. §§ 22.01, 37.09 (West 2011).
While on patrol, Dobbs saw Appellant walking across the railroad tracks. When they made eye contact, Appellant attempted to shield his face from the officer's view. Dobbs recognized Appellant as being one of the individuals on the warrant list. He followed Appellant and upon leaving his patrol car, commanded Appellant to "come here." Dobbs testified that Appellant complied with his command, verbally identified himself, said, "I don't have anything," and emptied the contents of the purse he was carrying onto the ground.
Appellant then walked to the front of the patrol car as instructed. Dobbs testified that as Appellant approached the car, he "flicked" the ball cap he was wearing and a white, rock-like substance fell to the ground. Dobbs retrieved the substance, placed it on the hood of the patrol car, and told Appellant to turn around and place his hands behind his back. Dobbs testified that Appellant grabbed the substance from the hood of the patrol car and threw it over Dobbs's head into a grassy area next to the road.
Appellant then ran from Dobbs, and Dobbs pursued him on foot for approximately one block before catching up with him. Dobbs grabbed Appellant's shoulder in an effort to detain Appellant, and Appellant spun around. He first hit Dobbs with his purse and then began striking Dobbs in the face with a closed fist. During the struggle, both Dobbs and Appellant fell to the ground. Dobbs attempted to restrain Appellant, and Appellant bit Dobbs's forearm, leaving a red mark that was still visible approximately one hour later. Appellant continued to fight Dobbs, even though Dobbs sprayed him with OC spray (pepper spray oleoresin capsicum). Appellant was finally handcuffed and placed in Dobbs's patrol car after a backup officer arrived on the scene.
Once Appellant was inside the patrol car, Dobbs activated the in-car camera. He attempted to locate the contraband Appellant had thrown earlier in the encounter, but was unsuccessful. EMS arrived to decontaminate both Dobbs and Appellant from the OC spray. In addition to the red mark on his forearm, Dobbs had a cut on the bridge of his nose. Dobbs testified that the injuries he received during his struggle with Appellant were painful, but did not require medical attention. He also testified that Appellant did not break the skin or leave bite marks when he bit him.
The jury found Appellant guilty of assault on a public servant and not guilty of tampering with or fabricating physical evidence. The jury also sentenced Appellant to seven years of imprisonment. This appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant argues that he received ineffective assistance of counsel at trial because his attorney did not request the appointment of an expert witness. Specifically, Appellant claims that counsel's failure to have an expert witness testify at trial prevented the jury from "considering" his defensive theory—that the redness on Officer Dobbs's arm was caused by a twisting motion, not a bite. Appellant further contends that counsel was ineffective because he did not consult or call an expert witness or call any other witness to contradict the State's witnesses at trial. Standard of Review
It is well settled that an accused has the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). The benchmark for judging any claim of ineffective counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id., 466 at 686, 104 S. Ct. at 2064. We follow the standard set forth in Strickland to determine whether counsel was ineffective. Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of evidence (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The first prong of the test requires a showing that counsel made errors so serious that counsel was not functioning as the counsel required by the Sixth Amendment, and that counsel's representation fell below an objective standard of reasonableness. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The second prong requires a showing that counsel's errors were so serious as to deprive the appellant of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Simply put, the appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Tong, 25 S.W.3d at 712. If both prongs of the Strickland test are not satisfied, we cannot conclude that the trial results were unreliable. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Judicial review of an ineffectiveness claim is highly deferential. Thompson, 9 S.W.3d at 813. In conducting this review, we presume that counsel's conduct fell within the wide range of professional assistance. Id. Thus, allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See id. at 814. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failure of trial counsel in order to satisfy Strickland's requirements. See id. at 813-14. Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield v. State, No. PD-1161-11, 2012 WL 1314083, at *1 (Tex. Crim. App. Apr. 18, 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). When there has been no post-trial proceeding where trial counsel has been afforded the opportunity to present evidence of the strategic bases, if any, for his trial decisions, it is extremely difficult for an accused to show deficient performance. See Brown v. State, 334 S.W.3d 789, 802 (Tex. App.—Tyler 2010, pet. ref'd). An appellate court "should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it." Menefield, 2012 WL 1314083, at *1 (quoting Goodspeed, 187 S.W.3d at 392). Applicable Law
The failure to request the appointment of an expert witness is not ineffective assistance in the absence of a showing that the expert witness would have testified in a manner that benefitted the defendant. Brown, 334 S.W.3d at 803. Counsel's failure to call witnesses is irrelevant unless there is a showing that such witnesses were available to testify and that their testimony would have benefitted the appellant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Brown, 334 S.W.3d at 803. Discussion
We first note that there is nothing in the record showing that a motion for new trial was filed, or that any fact finding hearings were held after appellate counsel was appointed. Thus, the record is silent as to why trial counsel did not request the appointment of an expert or call any other witnesses at trial. Nevertheless, Appellant cites Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), to support his contention that trial counsel was ineffective for failing to request the appointment of an expert and then call that expert as a witness at trial. In Briggs, the court of criminal appeals considered a habeas corpus application based on a fully developed record that consisted of testimony from a medical examiner, affidavits submitted by two physicians, a forensic scientist, and the applicant's trial counsel, as well as a letter from trial counsel where he explained to the applicant that he "could not hire experts 'unless the money is available to pay for their research and expenses for coming to court to testify.'" Id. at 468. After reviewing the aforementioned evidence, the court determined that counsel was ineffective. Id. at 470. But unlike the record in Briggs, the record in this case is not fully developed. Therefore, Briggs is not controlling here.
Nothing in the record before us shows that an expert would have been beneficial to Appellant. Nor does the record show that any other witnesses were available to testify or that the testimony of any such witnesses would have been beneficial to Appellant. Moreover, as we have previously stated, the record does not show why counsel did not request the appointment of an expert witness or call any witnesses. Thus, Appellant has not overcome the strong presumption that trial counsel was effective, and has failed to satisfy the first prong of Strickland. Therefore, we need not address the second prong—whether Appellant was prejudiced by counsel's ineffective assistance. Appellant's sole issue is overruled.
D ISPOSITION
Having overruled Appellant's sole issue, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.