Opinion
NO. 14-16-00707-CR NO. 14-16-00708-CR NO. 14-16-00709-CR
01-23-2018
TUCKER RAPHE SIMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court Harris County, Texas
Trial Court Cause Nos. 1454181 , 1454182 & 1454183
MEMORANDUM OPINION
Appellant Tucker Raphe Sims was indicted in three trial cause numbers 1454181, 1454182, and 1454183 for intoxication manslaughter, intoxication manslaughter, and intoxication assault, respectively. Each indictment also contained an allegation that appellant used and exhibited a deadly weapon, namely a motor vehicle, during the commission of the offense. Appellant pled guilty and true to the deadly weapon allegation without an agreed recommendation on punishment in each offense. The trial court sentenced appellant to prison for eighteen years for each intoxication manslaughter charge and ten years for the intoxication assault charge, with all sentences to run consecutively. Challenging his punishment in all three cases, appellant asserts two issues on appeal concerning ineffective assistance of counsel. We affirm.
I. Background
A. Plea of Guilty
On June 6, 2016, without an agreed recommendation on punishment, appellant pleaded guilty to two separate charges of intoxication manslaughter and one charge of intoxication assault, and pleaded true to the deadly weapon allegation in each charge. The trial court explained the range of punishment each offense carried as well as the effect of the trial court later finding "true" the deadly weapon allegation in each charge.
The record indicates that, at the time appellant entered his guilty pleas in these cases, the State filed a motion to cumulate the sentences. The State moved in all three cases for the trial court to cumulate the sentence assessed in cause No. 1454181 with the sentences in cause No. 1454182 and No. 1454183, arguing that all three cases arose out of the same transaction and the interests of justice would be served by cumulating or "stacking" the sentences. Defense counsel objected to the motion. The trial court noted the motion and objection and asked appellant if he was aware that at a subsequent sentencing hearing this was something the State would be asking the trial court to do. Appellant responded, "I understand that, yes, ma'am."
It is also known as a motion to stack the sentences.
B. Sentencing Hearing
On August 8, 2016, the trial court conducted a sentencing hearing. An officer testified that on January 12, 2015, at approximately 2:30 a.m., appellant was driving his car the wrong direction on a freeway in Harris County when he struck the front of complainant's vehicle, killing Allison Gallegos and Eliselda Martinez as well as causing serious bodily injury to Victoria Martinez. Toxicology reports of appellant's blood taken five hours after the crash revealed appellant's blood alcohol level was still .178, over double the legal limit. The sisters of both decedents testified for the State. The surviving complainant also testified for the State. Defense counsel called appellant to testify and appellant's mother.
The trial court found appellant guilty in all three cause numbers, the deadly weapon paragraph "true" in each case, and sentenced appellant, as follows:
. . .As for you, sir, I am going to assess your punishment — let me get the right cause numbers — in Cause No. 145182 at 18 years; in Cause No. 145181, 18 years; in Cause No. 145183, ten years.The judgments accurately reflect the punishment of consecutive sentences. Appellant filed a timely notice of appeal.
The sentences — they are all prison sentences. The sentences will be cumulative, and you will get credit for any time that you have spent in custody awaiting trial on this matter.
II. Analysis
In two issues, appellant complains that he received ineffective assistance of counsel. Both the United States Constitution and the Texas Constitution guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show (1) counsel's representation fell below the objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92.
A. Standard of review
In assessing appellant's issues, we apply a strong presumption that trial counsel acted competently. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 209-09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). When, as in this case, the record is silent regarding trial counsel's strategy, this court can find ineffective assistance of counsel only if the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). In most cases, an appellant is unable to meet the first prong of the Strickland test because the record is underdeveloped and does not adequately reflect the alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)
B. Failure to properly inform appellant of possibility of consecutive sentences
In his first issue, appellant argues he received ineffective assistance of counsel because his trial counsel "misinformed him regarding the possibility of consecutive sentences." The only evidence appellant offers in support of his ineffective-assistance claim is testimony that transpired during appellant's plea of guilty.
The Court: . . . I think that the state has filed something that I want to make sure that you are aware of.Appellant argues that defense counsel's claim that he would "object" to stacking the sentences was not trial strategy but a misunderstanding of the law.
I know your attorney has spoken with you about it, but I want to make sure that you are aware of it because at sentencing that is something that she is probably going to be asking the court to do. It doesn't' mean that I will do it, but she is going to be asking the court to do it.
Counsel.
[The State]: The state has filed a Motion to Cumulate the Sentences in all three cases. It is also known as a Motion to Stack.
I have given the defense counsel a copy of that so that the defendant will have notice that we will be asking for that at sentencing.
[Defense Counsel]: The defense is objecting to that; and we will be arguing that at sentencing, Your Honor.
The Court: I understand that, but I just want to make sure that you understand that is what the state is going to be asking for.
The Defendant: I understand that, Yes, ma'am.
Appellant's ineffective-assistance claim fails because he has not met his burden under either step of Strickland. The record is silent as to trial counsel's strategy. There is no evidence in the record that counsel failed to advise or improperly advised appellant he could receive consecutive sentences. The segment of the guilty plea hearing appellant quotes is inconclusive to establish deficient performance. The record shows appellant indicating to the court that he understood that the State would be asking to cumulate or stack his sentences. Without further evidence in the record, the term "object" as used by defense counsel does not equate to misinformation on sentencing. Moreover, there is nothing in the record to suggest that but for counsel's alleged errors, there is a reasonable probability the outcome of the proceedings would have been different. See Thompson, 9 S.W.3d at 813-14. Appellant's first issue on appeal is overruled.
C. Failure to investigate mitigating evidence and prepare for the hearing on punishment
In his second issue, appellant maintains that he was denied effective assistance of counsel at the sentencing hearing because his counsel failed to investigate mitigating evidence and prepare for the hearing on punishment. To support his contention, appellant cites to testimony put on the record by his trial counsel before the start of the sentencing hearing in which his counsel stated that he had "not had an opportunity for [the appellant] to sit with [him] and prepare for the case." In relevant part, the following exchange occurred at the hearing:
[Defense Counsel]: Mr. Sims, after you entered your guilty plea, you understood what we are going to do here today; is that correct?
The Defendant: Yes, sir.
[Defense Counsel]: Since that time, you and I have not had an opportunity for you to sit with me and prepare for this case, correct?
The Defendant: No, we have not.
[Defense Counsel]: You are aware that I have attempted to contact you?
The Defendant: Yes.
[Defense Counsel]: And apparently you were not able to communicate with me; is that correct?
The Defendant: Yes, sir.
[Defense Counsel]: And prior to that, you and I have had an opportunity to communicate; and I let you know what was going to happen today?
The Defendant: Yes, sir, absolutely.
* * *
The Court: Are you ready to proceed today?
The Defendant: Yes.
As an initial matter, the above testimony reflects that appellant and defense counsel had communicated prior to the sentencing and appellant had been advised as to what was going to happen on the day of the hearing. Without more, appellant cannot demonstrate that defense counsel was ineffective because of lack of communication. See Menefield, 363 S.W.3d at 592.
To the extent appellant asserts that defense counsel was "unprepared" and mounted "no defense," the record of the hearing proves otherwise. Contrary to appellant's assertion, defense counsel elicited testimony regarding appellant's addiction to alcohol and his struggle to fight alcoholism. Defense counsel also raised appellant's troubled adolescence and peer pressure to drink at an early age. Defense counsel explored appellant being raised by a single mother without the influence of a man in the house, including issues related to his father being killed during an industrial accident at work and his grandfather being murdered.
Defense counsel's decision not to discuss appellant's attendance at Alcoholics Anonymous could have been strategy, as appellant admitted when questioned by the State that he continued to drink while attending these court ordered meetings. In addition, defense counsel's decision to avoid dwelling on the past could have been a strategy to avoid emphasis on appellant's criminal history, which included convictions for assaults on family members and substance abuse. Courts accord defense counsel "wide latitude . . . in making tactical decision[,]" and appellant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 688) (internal quotations omitted). Here, appellant has failed to overcome this presumption and has not demonstrated that defense counsel's actions were not sound trial strategy.
Lastly, appellant complains that "[t]he only witnesses presented by the defense were Appellant and his mother, both of whom were question [sic] very briefly[.]" Appellant fails to offer and the record does not demonstrate what additional witnesses may have offered. As such, defense counsel's alleged failure to call additional, unnamed witnesses is "irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony." King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).
We will not speculate on a silent record that trial counsel failed to investigate potential mitigating evidence and prepare for the punishment hearing. It is possible that trial counsel investigated potential mitigating evidence and could not find any or that trial counsel found some potential mitigating evidence and decided not to present it based on a reasonable trial strategy. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (refusing to speculate about counsel's trial strategy and find deficient performance on a silent record based on counsel's failure to adduce additional evidence and to prepare and investigate witnesses, among other things). Appellant has not shown that trial counsel's conduct as to the investigation and presentation of mitigating evidence for the sentencing hearing was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. Therefore, we overrule appellant's second issue.
III. Conclusion
Appellant's issues are overruled and the judgments of the trial court are affirmed.
/s/ John Donovan
Justice Panel consists of Justices Jamison, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).