Summary
holding that the trial court abuses its discretion when its ruling falls outside the zone of reasonable disagreement
Summary of this case from Chappell v. StateOpinion
No. 07-16-00082-CR
01-09-2018
VIENGTHONG SIKALASINH, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court Potter County, Texas
Trial Court No. 70,847-B; Honorable John B. Board, Presiding
MEMORANDUM OPINION
Before CAMPBELL, PIRTLE, and PARKER, JJ.
Appellant, Viengthong Sikalasinh, plead guilty in open court to the offense of evading arrest or detention, enhanced by a prior felony conviction, and was sentenced by the trial court to five years confinement. In a single issue, Appellant asserts that the substitution of her counsel on the day trial commenced deprived her of her right to the effective assistance of counsel. We affirm.
See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2016) (a third degree felony) punishable as a second degree felony. See id. at § 12.42(a) (West Supp. 2017).
BACKGROUND
In August 2015, an indictment was filed alleging that on or about July 2, 2015, Appellant intentionally fled from Michael Fenwick, a person Appellant knew was a peace officer who was attempting lawfully to arrest or detain her and that she did so while using a vehicle. More than five months later, the State filed its Notice of Intent to Enhance Punishment Range with Prior Felony Conviction of Defendant Pursuant to Texas Penal Code Section 12 .42(a). The State's Notice alleged Appellant had been previously convicted of the third-degree felony offense of unlawful possession of a firearm in September 2011.
In February 2016, trial commenced. The State was ready to proceed; however, Appellant sought to replace her attorney, Jeffrey Hill, with a new attorney, Michael Warner. The trial court indicated that regardless of the substitution, a jury would be selected that afternoon and witnesses would be called the following morning.
Warner made an oral motion for substitution. In support, he stated that he met with Appellant that morning, explained the pros and cons of substitution to her, and explored with her the pros and cons of moving forward with new counsel. Although he had not reviewed the State's case file, he had reviewed portions of several police videotapes. He informed the trial court that he was ready to go forward with jury selection and would review the police reports and videotapes before witnesses were called the next morning. Appellant represented that she had an opportunity to visit with both attorneys about the possible pitfalls of switching attorneys and requested that the trial court grant Warner's motion. Thereafter, the trial court granted the motion and proceeded with jury selection that afternoon.
The next day, Warner informed the trial court that Appellant wanted to waive her right to a jury trial and proceed with an open plea of guilty. Prior to entering the plea, Appellant executed Written Plea Admonishments wherein she received notice of her enhanced punishment range and acknowledged she was mentally competent to stand trial, was aware of the consequences of her plea, was "total[ly] satisf[ied] with the representation of [her] counsel, and that counsel was competent in every respect of representation." She also judicially confessed to all the allegations in the indictment.
During the open plea, Appellant acknowledged she was guilty of evading arrest or detention with a vehicle, was able to think clearly, and had never been declared mentally incompetent. Appellant further acknowledged her counsel was able to answer all her questions. She also acknowledged that she signed a judicial confession of her own free will and understood she was giving up her right to a trial by jury. The State then called two witnesses, Officer Michael Fenwick and Deputy Tim Nguyen.
The State's evidence indicated that Officer Fenwick received a dispatch describing a pickup that had fled a stabbing incident. He subsequently identified Appellant's pickup as that pickup and initiated a stop by activating his emergency lights and siren. Through the rear window of the pickup, he could see an Asian female was driving and there were two small children in the rear seat of the extended cab. The pickup did not pull over to the side of the road. Instead, he followed the pickup for several miles during which the pickup was travelling sixty-five miles an hour in a fifty-five-mile-per-hour speed zone. He subsequently discontinued his pursuit for the safety of the children in the pickup.
Within the hour, he arrived at the address on the pickup's vehicle registration, identified the pickup parked at the residence, and observed Appellant getting out of the pickup. She was placed under arrest. Deputy Nguyen testified that after Officer Fenwick's pursuit, he met Appellant driving away from the residence whereupon she turned around and returned to the residence. He followed her to the residence. His testimony of the events that occurred at the residence after he arrived corroborated Officer Fenwick's account.
At this point, the parties alerted the trial court that while it had admonished her on the possible punishment under the enhanced penalty, Appellant had not entered a plea to the prior felony enhancement. The trial court subsequently accepted Appellant's plea of true to the enhancement.
The defense called two witnesses, Vincente Puentes and Appellant. Puentes, Appellant's boyfriend, testified that a year-and-a-half earlier, Appellant had given birth to a premature baby who subsequently passed away. After the baby passed, Appellant was admitted to a mental health facility for depression. Prior to the pursuit, he testified that she had given birth to a second premature baby and was going to the hospital four times a day to feed him. Appellant testified that she suffered from depression after the loss of her first child, and when Officer Fenwick turned on his emergency lights, all she could think about was getting to the hospital to see her child. She knew he wanted her to stop, and during the pursuit, she was driving ten miles per hour over the speed limit. On rebuttal, Sergeant Anthony Merryman testified that prior to the pursuit, the police had received a call from the residence concerning a stabbing. After her arrest at the residence, Appellant told Sergeant Merryman that a physical altercation had occurred that led to a cut on her finger and her boyfriend had thrown her purse out the pickup's window prior to Officer Fenwick's pursuit.
In closing, Warner argued there were extenuating circumstances that led to the pursuit. He highlighted that during the pursuit, Appellant had waived to officers to follow her and waited for them to arrive at her residence. He described the psychological effect of the death of her first child and the ongoing circumstances of the second birth as factors leading to the pursuit. He asked the trial court to consider deferred adjudication for a period of five years.
The trial court found the evidence sufficient to sustain a finding of guilt and a finding of true to the prior felony conviction. The trial judge observed that, given the evidence, her guilty plea was a "smart move." While the trial judge understood there were extenuating circumstances, he did not feel she was being completely honest with him regarding the circumstances prior to the pursuit. Her lack of credibility coupled with her prior felony conviction for felon in possession of a firearm led him to sentence her to five years confinement. This appeal followed.
On appeal, Appellant brings forward a multifarious issue asserting that the substitution of her counsel the day of trial deprived her of her right to the effective assistance of counsel. Thus, whether Appellant is asserting the trial court abused its discretion by granting the motion to substitute counsel or substituted counsel's representation was ineffective or both are unclear. Therefore, we will address these two matters in turn as a single issue.
MOTION TO SUBSTITUTE COUNSEL
A trial court's decision to allow a withdrawal and substitution of counsel is reviewed under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). This discretion includes the option to allow last-minute substitution of counsel. See Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). If the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion and the trial court's ruling will be upheld. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).
Here, Appellant's conduct evidences an intent to create an attorney-client relationship with Warner. Appellant was not only aware that he would replace her present attorney, but also that she had met with Warner before trial. During the meeting, Warner explained the pros and cons of substitution and explored her options in addressing the State's charges. When Warner made his oral motion for substitution, Appellant did not object. Instead, she affirmatively requested the replacement of her counsel, indicated she had an opportunity to visit with both attorneys about possible pitfalls of switching attorneys, and was present when the trial court considered Warner's motion. There was no reason for the trial court to suspect that Appellant did not accept Warner as her new attorney. Accordingly, having reviewed the record, we cannot say that the trial court abused its discretion in granting Appellant's motion to substitute counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant also asserts Warner's representation was ineffective as a matter of law because he was ill-prepared to advise her when the trial court granted her motion that he be substituted as counsel. Appellant asserts Warner should have undertaken a detailed investigation prior to assuming representation and developed mitigation evidence to be presented at sentencing.
To prevail on an ineffective assistance of counsel claim, an appellant must show, by a preponderance of the evidence, (1) deficient performance by trial counsel and (2) prejudice arising from the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). To establish deficient performance, an appellant must prove that counsel's representation fell below the "objective standard of reasonableness." Id. The Strickland test is judged by the "totality of the representation" not by counsel's isolated acts or omissions, and the test is applied from the viewpoint of the attorney at the time of the complained-of act or omission rather than through hindsight. Id. Furthermore, there is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional competence. Strickland, 466 U.S. at 690; Ex parte Niswanger, 335 S.W.3d 611, 619 (Tex. Crim. App. 2011).
To overcome this presumption, an appellant must establish counsel's ineffectiveness is "firmly grounded in the record" and "the record must affirmatively demonstrate" the alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Otherwise, the strong presumption that a trial counsel acted within the proper range of reasonable and professional assistance and had a sound trial strategy in mind is not overcome. Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio 2008, no pet.).
Further, if an appellant can demonstrate deficient performance, he or she must still affirmatively prove prejudice by showing a reasonable probability that "but for counsel's unprofessional errors" the outcome at trial would have been different. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997)).
Generally, direct appeals are inadequate vehicles for Strickland claims because the record is usually undeveloped. Goodspeed, 187 S.W.3d at 392; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). This is true regarding claims of deficient performance where counsel's reasons for claimed error do not appear in the record. Id. Generally, a reviewing court should not find deficient performance unless trial counsel has had an opportunity to explain his actions or the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. at 834 n.13. Accordingly, a silent record, such as we have here, provides little explanation for counsel's actions and is generally insufficient to overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). See also Badillo, 255 S.W.3d at 129 ("a silent record on the reasoning behind counsel's actions is sufficient to deny relief").
Here, Appellant complains that a detailed investigation should have been performed without establishing what, if anything, a more detailed investigation would have revealed. Neither is there any evidence that such an investigation would establish a reasonable probability that her sentence would have been reduced or that the development of mitigation evidence would have prompted a similar result. As such, Appellant has also failed to meet her burden under the second prong of Strickland.
Accordingly, we reject Appellant's characterization of counsel's performance as constitutionally deficient as a matter of law. Many claimed deficiencies are wholly unsupported by the record or involve actions that might reasonably be explained by trial strategy. When the record before us contains no explanation of trial counsel's actions, we are not required to speculate. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Therefore, in light of the existing record, we conclude Appellant failed to rebut the presumption that trial counsel's actions were reasonable. Thompson, 9 S.W.3d at 814. Appellant's single issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice Do not publish.