Opinion
NO. 14-11-00727-CR NO. 14-11-00728-CR NO. 14-11-00729-CR
08-07-2012
SAMUEL WADE HENDERSON, Appellant, v. THE STATE OF TEXAS, Appellee.
Affirmed as Modified and Memorandum Opinion filed August 7, 2012.
On Appeal from the 228th District Court
Harris County
Trial Court Cause Nos. 1315583, 1315584 & 1315585
MEMORANDUM OPINION
Appellant Samuel Wade Henderson appeals his jury conviction on three counts of burglary of a habitation with intent to commit sexual assault. In three issues, he argues that his trial counsel was ineffective and that the trial court abused its discretion by ordering the sentences to run consecutively. We modify the court's judgment and affirm as modified.
I
Henderson was indicted on three counts of burglary of a habitation with intent to commit sexual assault, and the three complainants testified at his trial. Each complainant lived in the Houston Medical Center when she was attacked, and the attacks all occurred within a four-month period in 2009. A Combined DNA Index System hit identified Henderson as a potential suspect, and on March 7, 2010, he was questioned by the police. Henderson confessed to the three offenses and gave unique details of each offense to corroborate his confession. At trial, he testified that he only confessed because he feared the police would send news reporters to his mother's house. Henderson was indicted on March 8, and his trial counsel, Charles Brown, was hired sometime thereafter.
On December 20, 2010, Brown signed a judgment with the State Bar of Texas to resolve complaints alleging deficient performance in several criminal cases. The judgment suspended Brown's law license from December 18, 2010 through December 18, 2013, but it was partially probated so that Brown was not authorized to practice law from December 18, 2010 through January 17, 2011. Henderson's trial took place in August 2011, eight months after Brown's license to practice law was reinstated. There is no evidence that Brown appeared on behalf of Henderson or provided him with any legal services while his license was suspended.
At trial, a DNA crime specialist testified that saliva found on one of the complainants matched Henderson's DNA. The jury, apparently unconvinced by Brown's bizarre defense strategy, found Henderson guilty on all counts and sentenced him to three life sentences. The trial court granted the state's motion to cumulate the sentences and denied Henderson's motion for a new trial. This appeal followed.
In his opening statement, Brown introduced two extraneous offenses to lay the groundwork for his assertion that Henderson had been incarcerated at the time a 1990 sexual assault had been committed, but testimony—some given by Henderson himself—disproved the validity of that assertion.
II
Henderson raises three issues in this appeal: (1) Trial counsel's introduction of extraneous offenses violated Henderson's Sixth-Amendment right to counsel; (2) Trial counsel's suspension from the practice of law during the pendency of the case violated Henderson's Sixth-Amendment right to counsel; and (3) the trial court abused its discretion by ordering that Henderson's sentences run consecutively.
The State concedes Henderson's third issue. The proper remedy for an unlawfully entered cumulation order is the reformation of the judgment to set aside the order. See, e.g., Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008). Accordingly, we set aside the trial court's cumulation order and address Henderson's assertions of ineffective assistance.
An accused is entitled to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective assistance, an appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 687; Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). If a criminal defendant can prove that trial counsel's performance was deficient, he must still affirmatively prove that counsel's actions prejudiced him. Thompson, 9 S.W.3d at 812. To demonstrate prejudice, a defendant must establish a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63.
When evaluating a claim of ineffective assistance, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. Isolated strategic errors made by trial counsel—including the intentional introduction of inadmissible extraneous offenses—do not necessarily render his performance ineffective. See Robertson v. State, 187 S.W.3d 475, 483-84 (Tex. Crim. App. 2006). Judicial review of counsel's performance must be highly deferential and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689). Accordingly, there is a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813 (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)). To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. Direct appeal is generally an inadequate vehicle for raising such a claim because the record is generally undeveloped and very rarely do claims of ineffective assistance survive on direct appeal. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).
Assuming, without deciding, that Brown's performance at trial was deficient, we cannot see how that performance prejudiced Henderson. Before Brown became involved with this case, Henderson confessed to all three crimes, and his DNA was conclusively matched to DNA evidence found on one of the complainants. In light of this overwhelming evidence of Henderson's guilt—all of which is untainted by Brown's conduct—we conclude that the result of Henderson's trial was also untainted by Brown's conduct. We can see no chance, much less a reasonable probability, that the the jury would have rendered a different verdict if Brown's advocacy had been above reproach.. Accordingly, we overrule Henderson's first and second issues.
* * *
For the foregoing reasons, we modify the trial court's judgment and affirm it as modified.
Jeffrey V. Brown
Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Brown. Do Not Publish — TEX. R. APP. P. 47.2(b).