Martin v. State

Full title: D'ANDRE LANARD MARTIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Jul 15, 2004

No. 01-03-00524-CR (Tex. App. Jul. 15, 2004)

Opinion

No. 01-03-00524-CR

Opinion issued July 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 122nd District Court, Galveston County, Texas, Trial Court Cause No. 02CR2135.

Panel consists of Chief Justice RADACK and Justices BLAND and BENTON.¹

1 The Honorable Levi J. Benton, judge of the 215th District Court of Harris County, Texas, participating by assignment. See Tex. Gov't Code Ann. § 74.003(h) (Vernon Supp. 2004).

MEMORANDUM OPINION

SHERRY RADACK, Chief Justice.

Appellant, D'Andre Lanard Martin, pleaded guilty, without a plea agreement, to the offense of robbery and elected for the trial court to assess punishment. At the conclusion of the sentencing hearing, the trial court assessed punishment at five years' confinement. In a single point of error, appellant contends that his trial counsel was ineffective because she did not object to questions to the complainant regarding punishment recommendation. We affirm.

BACKGROUND

During the sentencing hearing, without objection, the State asked the complainant how she felt about appellant being granted probation for the underlying offense. The complainant responded,

I feel like it would be a disservice to me and the community. I understand that he's never been convicted of anything before. However, this was a kind of violence that I don't think warrants being excused that lightly, not in [sic] civilized world. I think that people have to be accountable for their behavior.

During cross-examination, without objection, defense counsel asked the complainant

Q:Do you feel, then, [appellant] as a 19-year-old kid, so to speak, should also — if he had something he was interested in, that would turn his life into a better direction and that would be a goal for the community as well?

A:I think it would be good for [appellant] to get his life together and I hope he would. At 19 I don't — I've been around these young men that start these lives much younger than that and I've never cut them any slack on the street and they understood that and some of them have turned their lives around, too. What I'm saying is [sic] I always held them accountable for their behavior. And I believe [appellant], after speaking with his mother, comes from a good family. He has the kind of background that anyone, any child could hope for so that he has the foundation for putting his life together but I think he also needs to be responsible for his behavior.

During re-direct examination, without objection, the State asked the complainant

Q:Earlier we spoke briefly about community supervision or probation. That's also called community supervision. You had testified that you didn't think that was the appropriate punishment in this case. Going back to that, is it your understanding that if he were to be granted community supervision that he would be free to come home today and live just a few blocks from you?

A:No.

Q: If he were granted probation today, is it your understanding of probation that —

A:I don't really understand probation. I don't really know what it is. All I know is — I've never exactly — even from TV I don't know what probation is. I just — I guess you're right. I haven't thought of that. You just go back to living your life. I don't think that's appropriate in a violent situation. Had he snapped my purse and run, I might think, oh, a kid thing. But there was just so much violence involved here that it worries me, it frightens me that it would be taken that lightly.

During the State's closing argument, without objection, the prosecutor stated

We talked about probation while [the complainant] testified and her words were that "If this Defendant was granted probation, it would be a disservice to me and to this community." That was her quote. And that this sort of violence doesn't warrant probation. . . . [The complainant] asked that the Court doesn't handle this case lightly because of its violence and that the Defendant is held accountable for his actions on that day.

During the defense's closing argument, defense counsel argued, in pertinent part

Your Honor, I ask you to look at that burden and weigh the evidence of the testimony that was given to you today. And, in fact, the very victim stated that she fights wars, that she, in fact, testified that she sees the children who live on the borderline of that other life and that if they just had something to be interested in, that they could change that life and that that [sic] would make her feel better. . . . I challenge the victim — like I said — we are extremely really [sic] for what he did — how much happier and at peace will she be if she saw him as a productive man in this world, what she has worked so hard to do in her own neighborhood? I challenge her to say that it would make her feel better as it would if this 19-year-old child was to sit in prison for five years.

DISCUSSION

Ineffective Assistance of Counsel To prove ineffective assistance, a defendant must show, by a preponderance of the evidence, that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The defendant must overcome the strong presumption that the challenged action might have been sound trial strategy. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when the record is silent as to counsel's reasoning or strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Accordingly, assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). 1. Failure to Object to Punishment Recommendation Appellant asserts that his trial counsel was ineffective during the punishment phase because she failed to object to the complainant's punishment recommendation. In support of his assertion, appellant contends that the complainant's punishment recommendation violated limitations upon opinion testimony recognized in Sattiewhite v. State. See 786 S.W.2d 271, 290 (Tex.Crim.App. 1989). In Sattiewhite, the Court of Criminal Appeals held that an expert's opinion was properly excluded because: (1) the expert in that case was not shown to be qualified to recommend punishment, and (2) the subject was not one upon which the aid of an expert's opinion would be of assistance to the jury. Id. at 290-91 (discussing Schulz v. State, 446 S.W.2d 872, 874 (Tex.Crim.App. 1969) (If psychiatrist's opinion testimony regarding different punishment options was allowed, the State would be justified in seeking to put on an expert of its own, escalating into a "battle of the experts.")). Appellant correctly states that, in general, a witness may not recommend a particular punishment to the trier of fact. Johnson v. State, 987 S.W.2d 79, 87 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). For the purposes of our analysis, we assume without deciding that the complainant's testimony constituted an improper punishment recommendation. Thus, appellant must nevertheless overcome the strong presumption that counsel's failure to object to the State's line of questioning and subsequent reference to the complainant's punishment recommendation during argument might have been sound trial strategy. See Thompson, 9 S.W.3d at 813. The record reveals that, during cross-examination, defense counsel questioned the complainant regarding whether allowing appellant to assume responsibility for his actions and to "turn his life into a better direction" would be a service to the community. Additionally, defense counsel elicited testimony from the complainant that she believed appellant had the background, family, and foundation to "[put] his life together" and, that appellant had the potential to change. Finally, during her closing argument, defense counsel "challenge[d] the victim" to say it would make her feel better if appellant were confined for five years rather than as "a productive man in the world." Thus, rather than objecting to the State's questions and the complainant's responses concerning punishment, defense counsel capitalized upon the elicited testimony for the defense's own use during cross-examination of the complainant. On these facts, we conclude that counsel's decision not to object to the State's questions concerning punishment and the complainant's punishment recommendation was not so deficient or so lacking in tactical or strategical decision-making as to overcome the presumption that counsel's performance was reasonable and professional. See Bone, 77 S.W.3d at 833. Moreover, even if counsel's performance was deficient, appellant presents no evidence that, but for counsel's omission, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2069. Accordingly, we overrule appellant's single point of error.

CONCLUSION

We affirm the judgment of the trial court.