No. 05-04-01161-CR
Opinion Issued June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-80675-04.
Affirmed.
Before Justices FITZGERALD, FRANCIS, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
A jury found appellant Willie Tyrone Berry guilty of the misdemeanor offense of assault. Upon an agreement by the parties as to punishment, the trial court sentenced appellant to one year in the Collin County Jail, suspended imposition of that sentence and placed appellant on community supervision for twenty-four months, and imposed an $800 fine. On appeal, appellant raises only the issue of ineffective assistance of counsel. He contends his trial counsel was ineffective for not objecting to the admission of certain prior inconsistent statements and other hearsay by the complainant, and for not requesting a jury instruction limiting the jury's consideration of those prior inconsistent statements for purposes of impeachment only. Further contending he was prejudiced by the ineffectiveness of his counsel, appellant seeks a reversal of his conviction. Because appellant has not presented a record sufficient to carry his burden of proving his trial counsel was ineffective, we affirm the judgment.
Background
Appellant was charged by information with misdemeanor assault involving family violence, alleged to have occurred on November 30, 2003, by four different means: by striking the complainant's face with appellant's hand and fist; by grabbing the complainant's hair with appellant's hand; by striking the complainant's head with appellant's hand and fist; and by kicking the complainant's torso with appellant's foot, causing pain to the complainant. Appellant pleaded not guilty to a jury. Appellant and the complainant lived together at the time of the offense and at the time of trial. Although the complainant gave three written statements in the wake of the offense stating that appellant had assaulted her, she later filed an affidavit of non-prosecution with the Collin County District Attorney's office, and appeared unwillingly at trial as a hostile witness for the State against appellant. The complainant's medical records were admitted during the trial. The State offered, and the trial court admitted, without objection, the complainant's prior inconsistent statements and other hearsay for purposes of impeachment of the complainant. The charge contained no limiting instructions to the jury that it was to consider such evidence solely for the purpose of impeachment and not as substantive evidence of appellant's guilt. The record before us does not contain a motion for new trial alleging ineffective assistance nor any other post-trial evidentiary proceeding at which defense counsel had a chance to respond to those allegations. We are, therefore, limited in our review to the trial record itself. Standard of Review
The standard of review for ineffective assistance claims is well established. Appellate courts indulge a strong presumption that counsel was competent, i.e., that the challenged action might be considered sound trial strategy. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). To defeat this presumption, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. On appeal appellant must show two things to overcome the presumption of competent counsel: that trial counsel's performance was deficient, and that the deficient performance prejudiced his defense, rendering the trial unfair and the verdict suspect. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To show deficient performance, appellant has the burden to show there is no plausible professional reason for counsel's specific act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). The court of criminal appeals has stated that the record on direct appeal will generally "not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard" because "[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record." Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). A writ of habeas corpus is usually the more appropriate vehicle to raise ineffective assistance of counsel claims. Id. Recently the court of criminal appeals reiterated the effect of an insufficient record on appeal, stating that [d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was" so outrageous that no competent attorney would have engaged in it."
Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at * 2 (Tex.Crim.App. Apr. 6, 2005) (citations omitted); see also Rylander v. State, 101 S.W.3d 108, 111 (Tex.Crim.App. 2003). But see Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005) (reversing conviction "in a rare case" for ineffective assistance of counsel on trial record alone, concluding it presented court with sufficient information to decide case where defense counsel failed to object to prosecutor's misstatement of the law on sentencing during punishment closing argument). Analysis
On appeal, appellant contends his trial counsel was ineffective for not objecting to the complainant's prior inconsistent statements and other hearsay evidence and for not requesting a limiting jury instruction. Appellant contends he was prejudiced by such evidence because it was the only substantive evidence of his guilt before the jury. Describing it as a "very similar case," appellant relies on Owens v. State, 916 S.W.2d 713 (Tex.App.-Waco 1996, no pet.), as authority that trial counsel's failure to object to the general admission of complainant's written statements to the police, when they were only admissible as impeachment evidence, constitutes ineffective assistance of counsel. The State responds that appellant has not presented a sufficient record on appeal to carry his burden of showing ineffective assistance of counsel by proving the two prongs of the Strickland test by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956-57 (Tex.Crim.App. 1998). The State further contends that even on the limited record before us, appellant has not negated that defense counsel's omissions were part of a defensive strategy to create reasonable doubt by not contesting his conduct or the complainant's injuries but, rather, claiming self-defense as a justification for his conduct. And, because it was necessary for appellant to admit the charged conduct to prevail on a self-defense theory, the State contends counsel's omissions were consistent with that strategy. Therefore, appellant was not harmed by the failure to give a limiting instruction because there was evidence, independent of the prior inconsistent statements, to show an offense occurred. In short, the State argues appellant has not, on the record before us, shown that trial counsel's omissions were not part of a plausible strategy or that the outcome of the trial would have been different. The State also distinguishes Owens. In Owens, the complainant originally claimed the defendant had assaulted her and gave a written statement to that effect. Owens, 916 S.W.2d at 714-15. At trial, she testified she had been assaulted by someone other than the defendant. Id. at 715. Thus, in that case, the only evidence linking appellant to the assault was the complainant's prior inconsistent statement, and the court so found. Id. at 717. Such is not the case before us. Here, the complainant's trial testimony was not that the alleged conduct did not occur or that appellant did not commit it. She testified that the alleged conduct occurred, but claimed it was justified because it was done in self-defense. The evidence at trial shows that appellant struck the complainant, the complainant "had bruises," and a police officer testified that the complainant told him on the date of the offense that she had been assaulted by appellant. The medical records and photographs show the complainant's injuries. Thus, there was evidence, independent of the prior inconsistent statements, to prove the assault. During her trial testimony, the complainant testified she was intoxicated at the time of the assault. Appellant slapped her after she spoke harshly to him. She contended that any injuries she received occurred as a result of appellant acting in self-defense against her physical attacks on him. In short, the essence of the complainant's written statements was that appellant was the aggressor and he assaulted her without provocation. The essence of the complainant's trial testimony was that she was the aggressor and appellant assaulted her, but the assault was justified as self-defense. While in some respects the complainant's trial testimony contradicted and was inconsistent with her written statements, her testimony was consistent with a self-defense trial strategy. We have before us only the record of the trial itself. No post-trial evidence is before us. Because there is no post-trial evidentiary record before us on direct appeal, trial counsel has not had an opportunity to respond to appellant's allegations of deficiency. As in Thompson, the record is silent about why appellant's trial counsel neither objected to the complainant's hearsay or prior inconsistent statements nor requested a jury instruction limiting the jury's consideration of such evidence to impeachment only. See Thompson, 9 S.W.3d at 814. We conclude, therefore, as did the court of criminal appeals in Rylander and Goodspeed, that appellant has not presented this Court with a sufficient record to overcome the very strong presumption of competent counsel. Defense counsel has not been given a chance to explain why he acted or failed to act as he did, thus we can only speculate. See Goodspeed, 2005 WL 766996, at *2; Rylander, 101 S.W.3d at 111. Moreover, Andrews is distinguishable. There the issue was a misstatement of the law. Counsel's reasons, if any, were unnecessary to resolve the ineffective assistance of counsel claim. Andrews, 159 S.W.3d at 103; Goodspeed, 2005 WL 766996, at *3 (Price, J., concurring) (citing Andrews and Matthews v. State, 565 S.E.2d 766, 768 (S.C. 2002), which concluded that "counsel cannot assert trial strategy as a defense for failure to object to comments which constitute an error of law and are inherently prejudicial"). The record in this appeal is not sufficient to meet the Strickland standard because it does not affirmatively overcome the presumption of reasonable and professional conduct. See Bone, 77 S.W.3d at 833. Accordingly, we resolve appellant's issue against him. We affirm the trial court's judgment.