No. 05-03-00261-CR
Opinion Filed October 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0272607-LQ. Affirm.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
LANG-MIERS, Justice.
Darren Leshon Harris appeals his conviction for aggravated assault with a deadly weapon claiming that he received ineffective assistance from his trial counsel. Appellant was charged with aggravated assault with a motor vehicle. At the conclusion of the trial, appellant's counsel requested an instruction on the lesser included offense of assault. The trial court denied the request. The jury found appellant guilty of aggravated assault. The trial court sentenced appellant to imprisonment for 25 years. On appeal, appellant challenges his conviction claiming that his trial counsel was ineffective because she failed to request a jury instruction on the lesser included offense of reckless driving. The State responds that appellant did not meet his burden to establish ineffectice assistance of counsel, that there was no evidence that would permit a jury to rationally find appellant guilty of reckless driving, and that he could not be found guilty of reckless driving as a matter of law. We conclude that appellant has not shown by a preponderance of the evidence that his trial counsel's failure to request a jury instruction on the lesser included offense of reckless driving provided him with ineffective assistance of counsel. We affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tenise Caldwell and Messina Stigers, her neighbor, were sitting on the hood of a car, parked in front of Tenise's house. Tenise and Messina were waiting for Tenise's niece to be dropped off by the daycare van. While they were waiting, appellant and Stephanie Harris, who is his wife and Tenise's sister, pulled into the driveway. Appellant parked the car in the entrance to Tenise's driveway, got out of the car, and started yelling at Tenise. Appellant and Tenise were still arguing when the daycare van arrived. When Tenise reached into the daycare van to get her niece, appellant punched Tenise on the left side of her face. He also hit Tenise on the right side of her face so hard that she fell and he started kicking her where she was on the ground. Stephanie got out of the car and tried to get appellant off of Tenise. Appellant pushed Stephanie, causing her to fall against a fence and hit her head. Meanwhile, Messina ran across the street to her house to get help from her brother, Richard Stigers, and to call 9-1-1. When Richard went across the street, he saw appellant beating his neighbor, Tenise. She had a broken nose, a bruised face, swollen eyes, and cuts and scratches on her arms and back. Richard told appellant to stop and appellant told him that "This ain't got nothing to do with you." Richard hit appellant two times. Appellant backed away from Richard, got back into the driver's seat of the car, and Stephanie got into the front passenger seat. Appellant's car rolled back a little and then suddenly accelerated forward toward Richard. Richard saw the car coming and tried to jump out of the way, but his leg was "smashed" between appellant's car and a truck parked in the driveway. Richard had a large abrasion and burned skin on the inside of his left leg from the calf to the knee, approximately the size of an Ozarka water bottle. Both the car and the truck were damaged. Stephanie was shocked, got out of the car to see if everyone was all right, and then walked with her sister inside the house while appellant yelled at her to get back into the car. Appellant did not get out of the car to see if Richard was alright or apologize. Richard hopped around the neighbor's chain-link fence to get away from appellant's car. Appellant backed the car out of Tenise's driveway into the street and then, aiming the car at Richard, drove the car forward over the curb into the neighbor's yard. Richard jumped out of the way. Appellant hit the neighbor's fence with the car, then he drove across the neighbor's yard to the neighbor's driveway and left the area. Stephanie testified that there was a pit bull in the back seat of the car; that while the car was in reverse the dog lunged forward pushing the gearshift into drive; and that because appellant's foot was on the gas pedal when the dog pushed the gearshift forward, the car drove forward hitting Richard. Stephanie believed it was an accident. However, Messina testified that she did not see a dog and Tenise testified that there was no dog in the car. At the conclusion of the trial, appellant's counsel requested a jury instruction on the lesser included offense of assault, which the trial court denied. The jury found appellant guilty of aggravated assault. During the hearing on punishment, appellant entered a plea of true to one of the two enhancement paragraphs. The trial court found that enhancement paragraph true and sentenced appellant to imprisonment for 25 years. Appellant filed a motion for new trial stating that the verdict is contrary to the law and the evidence. The trial court denied appellant's motion for new trial. II. FAILURE OF COUNSEL TO REQUEST A LESSER INCLUDED OFFENSE
In his sole issue on appeal, appellant claims that his trial counsel was ineffective because she failed to request a jury instruction on the lesser included offense of reckless driving. The State responds that appellant has not met his burden of proof to establish ineffective assistance of counsel because he was not entitled to a jury instruction on the lesser included offense of reckless driving for two reasons. The State argues that there is no evidence in the record that would permit a jury to rationally find appellant guilty of reckless driving because if a dog caused him to shift into drive then it is evidence of an accident, not reckless driving. Second, the State argues that appellant could not be found guilty of reckless driving as a matter of law because the offense applies to the operation of a motor vehicle in public areas or on public roads, not private residential property. We conclude that appellant has not shown by a preponderance of the evidence that his trial counsel's failure to request a jury instruction on the lesser included offense of reckless driving provided him with ineffective assistance. A. Standard of Review
An appellate court's review of counsel's performance is highly deferential, and there is a strong presumption that counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). See also Gomez v. State, 921 S.W.2d 329, 333 (Tex.App.-Corpus Christi 1996, no pet.). An appellate court does not inquire into trial strategy, unless there exists no possible basis, in strategy or tactics, for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). An appellate court should not try to second-guess a trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999). An appellate court should be hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions-whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). B. Applicable Law
We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). See also, e.g., Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994) (en banc). To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (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, 466 U.S. at 687-88, 694. See also Diaz v. State, 905 S.W.2d 302, 307 (Tex.App.-Corpus Christi 1995, no pet.). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Ineffective assistance of counsel claims must be firmly rooted in the record. Bone, 77 S.W.3d at 835. See also Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Thompson, 9 S.W.3d at 813. Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient, and so lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. Ordinarily, trial counsel should be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111. An appellant cannot meet his burden if the record does not specifically focus on the reasons for the conduct of trial counsel. Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). This type of record is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. Id. (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (per curiam)). C. Application of the Law to the Facts
The record in this case does not include any explanation of why appellant's trial counsel did not request a jury instruction on the lesser included offense of reckless driving. Also, the record does not contain any evidence showing that the failure of appellant's trial counsel to request a jury instruction on the lesser included offense of reckless driving was not a part of trial strategy. Further, appellant's motion for new trial did not address the issue of the lesser included offense of reckless driving and the record does not contain a transcript of a hearing developing the reasons for trial counsel's conduct. As a result, we conclude that appellant has not shown by a preponderance of the evidence that his trial counsel was ineffective because she failed to request a jury instruction on the lesser included offense of reckless driving because the performance of appellant's trial counsel did not fall below an objective standard of reasonableness. Because appellant has not satisfied the first prong of Strickland, we need not address whether a reasonable probability exists that but for counsel's errors, the result would have been different. See Rylander, 101 S.W.3d at 111; Jackson, 877 S.W.2d at 771. Appellant's sole issue on appeal is decided against him. III. CONCLUSION
We conclude that appellant has not shown by a preponderance of the evidence that his trial counsel's failure to request a jury instruction on the lesser included offense of reckless driving provided him with ineffective assistance. We affirm the trial court's judgment. Tex.R.App.P. 43.2(a).