Nos. 05-04-01394-CR, 05-04-01395-CR, 05-04-01396-CR
Opinion issued January 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-56370-PL, F03-56371-PL, F03-56372-PL. Affirmed.
Before Justices MORRIS, WRIGHT, and FRANCIS.
Opinion By Justice MORRIS.
In these cases, Carron Henderson appeals his convictions for three offenses of aggravated assault with a deadly weapon. He argues on appeal that he received ineffective assistance of counsel. Concluding appellant has failed to meet his burden of proving ineffective assistance, we affirm the trial court's judgments.
Factual Background
Appellant was attempting to pick up some schoolchildren with a daycare van when he got into a dispute with a mother also waiting to pick up her children in the school's parking lot. The dispute led to an altercation between appellant and the woman. The woman's teenage son became involved as well, and the school's security guards had to try to break up the scuffle. Ultimately, appellant left the parking lot in the van. Three people in the parking lot at the time, including the woman from the original argument, claimed appellant hit them with the van as he attempted to exit the parking lot. No more than twenty minutes after he first left the parking lot, appellant returned and was arrested. Two of the complainants stated that he acted intoxicated and smelled of marijuana. After the incident, appellant's father wrote to the complainants. He said in one letter that "he knew this was a bad situation for his son and that his son was trying to get his life together" and that appellant's "daughter was unable to adjust in school." Appellant's father asked the complainant "to do the right thing, by saying that it was just an accident." In another letter to a complainant, appellant's father said, "Your strong testimony against [appellant] could cause him to go to prison. I know perhaps he may have had a bad day on that particular day, but he is a good family man and have [sic] always run from fights." He noted that appellant's being in jail was taking a toll on his fifth-grade daughter's mind. He concluded the letter saying, "Let's pray that this can be dissolved [sic] without any more hurt." Appellant testified in his defense. He claimed that after the female complainant's son tried to attack him, one man restrained the boy and another man who "wasn't in uniform," "didn't show a badge," and "didn't act professional," told appellant that he was going to handcuff him. Appellant then got back in his van. He claimed the traffic in the parking lot had cleared sufficiently at that point to allow him to move forward. He stated that as he tried to pull away, there were approximately three people in his way, so he blew his horn to get them to move. Appellant said that while he waited to leave, he saw the woman's son approaching him again. At that point, he put his van in neutral and let it roll down a hill toward the people in his way. Then he put his van in drive and moved to the area where he could pick up the children he had come to retrieve. He got out of the van, but when he saw the boy running toward him, he got back in and began to drive away from the parking lot. He claimed the boy tried to hit him inside his car. He defended himself by pointing a fire extinguisher from the van at the boy's face. He then parked at a nearby motel for five minutes "to let everything calm down." When he returned to the parking lot, he was arrested. Appellant claimed he had used "minimum force possible to get away from the danger." He claimed he had not intended to hurt anyone. He claimed he had only made contact with the complainants as he attempted to "disperse" them out of the way as he rolled down the hill in neutral. Appellant stated that when he heard one of the complainants say at the scene that he "ran over his foot or something," he apologized to him. He testified that he had not been smoking marijuana on the day of the offense. Appellant's father also testified for the defense. He claimed that when he got to the scene, the teachers at the school "were laughing and joking." According to appellant's father, the people at the school told him that appellant "had accidentally hit somebody." He claimed no one at that time was complaining of injuries. He also claimed that appellant was not at that time showing any signs of having smoked marijuana. Discussion
In his sole issue on appeal, appellant claims he was denied effective assistance of counsel at trial. Appellant specifically argues about alleged errors counsel made in defending appellant in a separate companion robbery case that was tried in the same proceeding with the aggravated assault cases that are the subject of this appeal. He also contends that counsel's confusion about whether he was eligible for probation for an aggravated offense shows that counsel was ineffective. During his argument on punishment, counsel attempted to ask the trial court for probation and questioned the court's assertion that appellant was not, in fact, eligible for probation because he had pleaded not guilty to the court in cases involving aggravated offenses. To prevail on his ineffective assistance claim, appellant must prove by a preponderance of the evidence both that (1) counsel's performance fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 695 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A reasonable probability is one sufficient to undermine confidence in the trial's outcome. See Thompson, 9 S.W.3d at 812. Allegations of ineffective assistance of counsel must be firmly founded in the record. See id. at 813. Here, appellant's counsel admitted he may have made errors in appellant's cases. He claimed in appellant's companion robbery case that the case was the first he had tried since he suffered a stroke in 2002. He was clearly confused about appellant's eligibility for probation, and he appeared to irritate the trial judge at various stages of the trial. Nevertheless, appellant has failed to show on this record that, but for his attorney's deficiencies, the results of his trial would have been different. Any errors counsel allegedly made in the robbery case had no effect on the outcome of these aggravated assault cases. Moreover, the record makes clear that, despite counsel's confusion about appellant's eligibility for probation, appellant was thoroughly admonished by the trial judge that he would not be eligible for probation if he persisted in entering a not guilty plea before the trial court without a jury. Appellant stated that he nevertheless desired to enter his plea. And the State's evidence against appellant was strong. Thus, appellant has failed to show that, but for his counsel's representation, the result of his cases would have been different. Because he has failed to meet the second prong of the Strickland standard, we resolve appellant's sole issue against him. We affirm the trial court's judgments.