Opinion
NO. 01-10-00924-CR
01-26-2012
DONGHAI YU, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 60783
MEMORANDUM OPINION
A jury convicted Donghai Yu of murder and assessed his punishment at thirty-five years' confinement. See TEX. PENAL CODE ANN. § 19.02 (West 2011). On appeal, Yu contends that trial counsel violated his constitutional right to effective assistance by failing to object to a defense expert's testimony on cross-examination by the State. We hold that Yu has failed to meet his Strickland burden to demonstrate that his trial counsel performed deficiently. We therefore affirm.
Background
In October 2009, Yu called 9-1-1 dispatchers from his house, stating that he had stabbed his wife. Pearland police responded to the call. When the officers arrived, they entered Yu's house and found his wife, Ling Feng, lying on the floor unconscious. Emergency personnel life-flighted Feng to Memorial Hermann Hospital where she was pronounced dead. The medical examiner concluded that Feng had died from stab wounds to her lungs and liver.
At trial, Yu maintained that he was not guilty of murder by reason of insanity. Yu asserted that he had stabbed his wife because paranoid delusions had caused him to think that she had poisoned their son. In support of his defense, Yu offered testimony from expert witnesses, including testimony from Dr. Michael Fuller, a forensic psychiatrist. Dr. Fuller testified that Yu had suffered from severe mental defects and was legally insane at the time of the offense. On cross-examination, the State attempted to discredit Dr. Fuller's conclusions by contending that Yu understood his actions because he knowingly hurt his wife in a misguided effort to defend his son. On appeal, Yu claims that his trial counsel rendered ineffective assistance by failing to object to this part of Dr. Fuller's testimony on cross-examination.
Discussion
To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel's performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). A defendant has the burden to establish both prongs by a preponderance of the evidence; failure to make either showing defeats his ineffectiveness claim. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc). We apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume trial counsel's actions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd). Furthermore, a claim of ineffective assistance must be firmly supported in the record. Thompson, 9 S.W.3d at 813. Where the record does not offer an explanation for trial counsel's actions, we must presume that counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson, 877 S.W.2d at 771; Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (en banc).
On appeal, Yu contends that his trial counsel should have objected to the following questions:
Q: So, why then is this not a self-defense case as opposed to insanity? A: I'm not the attorney; and when I interviewed him, it was clear that this case involved the insanity defense. Q: Well, don't you think if Mr. Yu really believed he was in danger and that's why he reacted in self-defense as you told this jury, that he should have a self-defense charge? A: No. I think he should follow the advice of his attorneys. Q: But you're—you're doing forensic psychiatry. So, you understand all these issues, do you not? A: I am not an attorney. Q: But you understand the legal issues of— A: I understand the legal issues of the insanity defense. Q: But only the insanity defense?Yu's brief states that this line of questioning and testimony was objectionable because it calls for a legal opinion that the witness was not qualified to render. But Dr. Fuller himself handled the issue by stating that he was not a lawyer and had been hired to look only at the facts supporting an insanity defense. Contrary to Yu's assertion on appeal, Dr. Fuller did not provide any legal definition of self-defense in the challenged testimony.
Without a sufficient record, an appellant cannot overcome the presumption that counsel's actions were motivated by sound trial strategy. See Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (en banc) ("[W]ithout some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design."), cert. denied, 532 U.S. 1053, 121 S. Ct. 2196 (2001); Broussard, 68 S.W.3d at 199-200. Yu's motion for new trial asserted that the evidence at trial was factually insufficient to sustain the verdict and was overruled by operation of law. The record thus is silent as to why Yu's counsel raised no objection. We may not speculate on counsel's motive in the face of a silent record. In the absence of a proper evidentiary record, we must presume that trial counsel exercised reasonable professional judgment. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (en banc) (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses); Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002) (record insufficient to reverse a conviction on ineffective assistance of counsel grounds); Broussard, 68 S.W.3d at 199 (record insufficient to support ineffective assistance claim where record did not reveal why counsel did not file motion to suppress cocaine in drug possession case). Accordingly, we reject Yu's ineffective assistance claim and affirm the judgment of the trial court.
Conclusion
We conclude that Yu has not carried his burden to prove that trial counsel rendered ineffective assistance. We therefore affirm.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).