No. 05-08-00882-CR
Opinion Filed October 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 219th District Court, Collin County, Texas, Trial Court Cause No. 219-82996-06.
Before Chief Justice THOMAS, Justices FRANCIS, and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
Appellant, Thomas Cooper Jackson, entered his plea of guilty to the jury. The jury found him guilty of intoxication manslaughter and assessed a seventeen-year sentence. In two grounds of error, appellant contends he received ineffective assistance of counsel and the sentence was against the overwhelming weight of the evidence. We affirm the trial court's judgment.
BACKGROUND
Appellant's sport utility vehicle (SUV) "t-boned" the complainant's Chevrolet Silverado pickup truck (truck). The collision partially ejected complainant his truck and he died several months later without ever regaining consciousness. The Grand Jury indicted appellant alleging that he caused the death of another while driving under the influence of alcohol. INEFFECTIVE ASSISTANCE OF COUNSEL
In appellant's first ground of error, he contends that his counsel did not examine the crime scene, did not prepare for trial, and, had counsel investigated, could have shown that appellant was not driving ninety-six miles per hour. Appellant contends that the lack of skid marks from either vehicle shows he could not have been driving that fast. Appellant also complains that trial counsel did not advise him to recant his previous interviews with police and testify that he had been drinking with off-duty police officers before the accident. He maintains that if trial counsel had advised him to change his testimony, the jury could have given him a lighter sentence or probation. Additionally, he argues that his attorney did not give him sufficient information to allow him to make an intelligent decision on whether to enter a plea of guilty or have a jury trial. Appellant argues a jury could have found him not guilty. The State responds that the record contains no evidence to support appellant's complaints and counsel's actions could well have been trial strategy. The State argues that because this silent record cannot overcome the presumption that trial counsel's assistance was within the range of reasonably professional assistance, this Court cannot speculate on counsel's trial strategy. Additionally, the State contends none of appellant's complaints would have changed the results of trial because "of the horrific accident, appellant's extremely high alcohol concentration, . . . [and his behavior] . . . while on bond for [the instant] offense." 1. Standard of Review
We evaluate the effectiveness of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Mallet v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001) ( citing Strickland, 466 U.S. at 687-88, 694). Our courts have interpreted "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 63. To apply the standard "but for counsel's error," we must determine that trial counsel erroneously advised appellant. See Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). When appellant enters a guilty plea, he satisfies the second prong of the Strickland test if he shows there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty but rather would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). 2. Applicable Law
Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We presume that counsel's decisions fell within the range of reasonable, professional assistance unless the record shows otherwise. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When the record is silent regarding the motive behind counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d 63. Generally, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson, 9 S.W.3d at 813-14. Ineffective assistance of counsel must be firmly founded in the record, not on retrospective speculation. See Bone, 77 S.W.3d at 835. THE EVIDENCE 1. Desiree Truitt
On the night of the collision, Truitt testified that she had stopped her vehicle at a red light when she saw a vehicle speed through the intersection so fast she never saw it approaching. As she continued her drive home, she saw a SUV "diagonal sideways" near Wal-Mart that looked liked the vehicle that had sped past her. Next, she saw one half of a truck sitting on the side of the road. People were walking up to the truck and screaming. She did not approach the truck. 2. Stephen Coomer
Coomer, a Wylie Police Detective, was on patrol on the night of the accident and responded to the scene of this accident. The vehicles had blocked the northbound lanes of Highway 78. The truck was split in two. Comer found appellant, the SUV driver, alive, unconscious, and "slumped[,] laying into the wheel." After the paramedics placed appellant in an ambulance, Coomer attempted to talk to him. Appellant kept going in and out of consciousness and smelled strongly of alcohol. 3. Austin Podowski
Podowski and a friend were first to reach the scene of the collision. He approached the SUV to check on the driver. When appellant responded he could not feel his legs, Podowski called 911. Podowski had no idea how fast the SUV had been going, but the front of the SUV was crushed in and "pretty banged up." Podowski did not approach the truck because others had arrived on the scene and were caring for the complainant. 4. David Larocca
Larocca, a Wylie Police Detective, was assigned to this case the morning after the accident. Larocca testified the posted speed limit on the Highway 78 was sixty miles per hour. A couple of days later, appellant came to the police department to "discuss the incident." Larocca asked appellant to go back twenty-four hours before the accident to reconstruct what happened. Appellant related that when he arrived home from work, he and his wife argued and he left home. From there, he went to Chili's and "had a few beers" and, then went back to work "to gather his thoughts." When he left work, he went to the Ranch House, a restaurant/bar, and had a few drinks before he headed home. Appellant could not remember much about the accident. Although appellant admitted drinking and not having eaten since lunch, he maintained he did not drink "numerous amounts of alcohol" and the alcohol did not impair his driving. Larocca followed up his interview with appellant by going to the Ranch House and obtaining appellant's receipt from the night of the accident, as well as appellant's medical records from the hospital. Later, appellant's wife contacted Larocca and told him she had received a bank statement that showed appellant had charged $120 at the Ranch House a couple of weeks after the accident. In response to her telephone call, Larocca went back to the Ranch House and got that receipt as well. Larocca obtained an arrest warrant, arrested appellant, and asked if he was willing to talk about the accident-appellant agreed. On cross-examination, Larocca stated he did not do a full work-up on the accident, but he understood that the deceased was either turning left or making a u-turn when the collision occurred. Larocca questioned appellant about the Ranch House charges, and appellant contended that he had bought drinks and "stuff" for some friends. On redirect examination, the State introduced appellant's medical records from the night of the collision. Those record showed appellant's blood alcohol concentration at .25-0ver three times the legal limit. 5. Matthew Miller
Miller, a Wylie Police Officer, testified that, on the date of the accident, Wylie employed him as a patrol officer. He received a call that directed him to the accident scene. The truck's cab was completely dislodged from the frame. The complainant had been partially ejected through his truck's back window. The complainant was unconscious and had severe head trauma. Miller explained that police "painted" the scene so that they could clear the highway and come back later and "shoot the scene with the Total Station." Accident investigators use this surveying equipment in accident reconstruction to "map the scene through the computer program." Using a computer program and formulae, investigators can determine the approximate speed for vehicles. Although the computer could not calculate the truck's speed, it did calculate the SUV's speed at approximately ninety-six miles per hour. Miller found no skid marks from either vehicle-only gouging and scrape marks. Miller became aware of a computer program that could be used to retrieve information from a vehicle's air bag deployment module (module). The module provides information on the position and location of the seat, speed, braking, and crash data recovery. Using programs and officers supplied by the Plano and North Richland Hills Police Departments, police retrieved data from the modules of both the SUV and the truck. The truck was traveling at twenty-one miles per hour, and its driver applied his brakes four to five seconds before impact. The SUV's speed, from five seconds before the crash to one second before the crash, was a constant ninety-six miles per hour, and its driver never applied his brakes. On cross-examination, appellant questioned Miller on his Department of Public Safety (DPS) report. The report showed the truck entered the left-hand turn lane, the SUV continued straight, and struck the truck. The report listed appellant's speed, alcohol level, and the truck's failure to yield the right-of-way, as causes of the accident. Miller explained that at night, in an unlit area, it would be very difficult for a turning vehicle to judge an approaching vehicle's speed. Any vehicle traveling ninety-six miles per hour would cover 140 feet per second or "a football field in two seconds" as compared to a vehicle traveling at sixty miles per hour that would cover only eighty-seven feet per second. 6. Kenneth Evans
Evans, a DPS Crime Laboratory Evidence Analyst, measured appellant's blood alcohol level at .20. He explained the difference between the hospital's blood alcohol level of .25 and the DPS test level of .20 could occur because of a time difference between when the samples were taken and whether the drawn blood was whole blood or serum blood. He opined that both are accurate, just tested in different ways. 7. Appellant
Appellant testified that at the first meeting he had with his attorney, he told his attorney that he wanted to "plead guilty" because he was guilty. At that same meeting, his attorney explained that ways existed that might "get around" the intoxication charge, but appellant maintained that he still wanted to "plead guilty." Appellant testified that he had maybe three drinks at the Ranch House on the night of the accident. Appellant explained he had not had a drink for over a year until the night of the accident. He did not recall speaking with anyone but the bartender at the Ranch House on the night of the accident. All appellant could remember was that someone "escorted" him out of the Ranch House and put him in his SUV. On cross-examination, appellant testified that he had five drinks on the night of the accident, two at Chili's and three at the Ranch House. He agreed that when the hospital tested his blood alcohol level, it was three times the legal limit. Appellant remembered someone walking him to his car but did not remember driving home. He did not remember seeing the complainant. APPLICATION OF LAW TO FACTS
The reporter's record begins with jury selection. After admonishing appellant, the trial court informed appellant of the range of punishment and that it would instruct the jury to find him guilty and assess his punishment. It then inquired into whether appellant had consulted with his attorney and if he understood that the jury would find him guilty and assess his punishment within the range provided by law. The trial court also inquired if appellant's trial attorney also believed appellant was "freely, voluntarily, and competently" entering his plea. Appellant argues that had his attorney examined the accident scene, he would have seen the lack of skid marks, which would have made it "basically impossible to determine [his] speed." Appellant's argument ignores the evidence from the module implanted in his SUV that revealed his speed moments before the collision occurred. Appellant neither directs this Court to any evidence showing how a lack of skid marks invalidates the module's recorded data nor does he explain how the lack of skid marks could determine his rate of speed. Appellant's oral and written statements given to the police shortly after the accident downplayed his alcohol consumption on the night of the accident. Appellant maintains that his attorney's failure to advise him to recant those statements and testify that he had been drinking with police officers would have resulted in a shorter sentence. Nothing in this record shows what appellant's trial counsel knew about appellant's drinking companions or what advice counsel delivered regarding recanting his statements. And, appellant admitted on direct examination that the only person he spoke with at the Ranch House on the night of the accident was the bartender. Nowhere in the record do we find evidence of counsel's trial strategy or that trial counsel gave appellant any erroneous advice or information. The record does not show, nor does appellant explain, how entering a plea of guilty to the jury and having the jury set punishment demonstrates that counsel was unprepared for trial and unfamiliar with the trial judge. Appellant's mother testified that appellant always intended to enter a plea of guilty. Additionally, appellant's cellmate testified that he discussed with appellant how he had entered a plea of guilty to a jury and received probation from the jury. Appellant does not show a reasonable probability that, but for his trial counsel's alleged errors, he would have pursued a jury trial or achieved a different outcome. Viewing the record as a whole, we overrule appellant's first point of error. SUFFICIENCY OF THE EVIDENCE
In appellant's second point of error, he maintains the prison sentence is contrary to the overwhelming weight of the evidence. Appellant never uses the words "factual insufficiency" in his brief. He, however, only cites this Court to Clewis v. State, 922 S.W.2d 126, 134-35 (Tex. Crim. App. 1996), and the Clewis court's rationale. Consequently, we take his point to be one of factual insufficiency of the evidence. The State responds that factual insufficiency does not apply in the punishment stage of trial. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.-Eastland 2001, pet. ref'd). And, it contends that appellate courts do not disturb any punishment assessed within the statutory range. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The jury assessed appellant's punishment within the statutory range. We overrule appellant's second point of error. We affirm the trial court's judgment.