No. 05-02-00266-CR.
Opinion Issued May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F99-00293-MJ. AFFIRMED.
Before Chief Justice THOMAS, Justices MOSELEY and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By SUE LAGARDE, Justice.
Gregory Glenn appeals his conviction for aggravated kidnapping. Appellant was convicted by a jury on February 11, 2002 and sentenced to twenty years' confinement. In five points of error, appellant complains he did not receive effective assistance of counsel. We affirm the conviction.
Factual Background
On July 1, 1998, appellant and his wife, Denise Evans Glenn, left her workplace to have lunch around noon. Appellant drove his wife to the bank to obtain cash to pay bills. An argument ensued over how the money was to be spent. Instead of going to lunch, the couple returned to Denise's workplace; however, she did not return to work. The couple continued to argue in the van outside the building. After circling the block several times, the couple sped away in the van. Denise testified appellant prevented her from getting out of the van by punching her several times in the face, being verbally abusive, and threatening her life. Appellant drove her to a secluded, wooded area where he told her they were both going to die. Denise broke the window of the van with her shoe and yelled for help. Denise testified the appellant then pushed her out of the window. She held onto the van by the side view mirror as the appellant drove the van toward a metal shed. She then fell from the moving vehicle. She believed appellant intended to run her into the shed. Appellant testified he did not restrain Denise in any way except to try to keep her from jumping from the van and injuring herself. He only hit her in the arm after she kicked him. She refused to leave the van when he tried to return her to her work place and she became angry when he refused to give her money that was needed to pay bills. Appellant was circling the building when Denise kicked him and kicked out the passenger side window, causing him to miss his turn and enter the freeway. When he exited the freeway and tried to turn back toward Denise's office, he had to swerve to avoid hitting a man who was later identified as Father Eggleton. At this point Denise jumped out of the window causing the van to hit the shed. Appellant lost control of the van while trying to keep Denise from jumping out of the window. He did not stop the van because he was trying to stop Denise from jumping from the van. Father Christopher Eggleton, a Catholic priest living at the priory located at the University of Dallas at Gorman and Dominican streets, witnessed the events on July 1, 1998. He testified he was walking down the driveway near the priory around 12:30 p. m. on July 1, 1998. He saw a yellow van coming down Dominican at a high rate of speed. A screaming female passenger was hanging onto the outside of the van's passenger window. As the van traveled directly toward a metal shed at the end of Dominican, it bumped over a curb, throwing the woman onto a grassy area. The van then smashed into the shed and traveled into a parking lot. Father Eggleton tended to the injured woman. Effective Assistance of Counsel
The right to effective assistance of counsel is guaranteed under both the federal and state constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The standard for testing ineffective assistance of counsel claims was announced in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). The Strickland-Hernandez standard establishes a two-part test to be used in considering ineffectiveness claims. This standard applies at both the guilt and punishment phases of trial. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim. App. 1999). First, an appellant must show that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The appellate court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689. Second, an appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must affirmatively prove prejudice. Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), disavowed in part on other grounds by Moseley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998). Appellant bears the burden of showing ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). The alleged deficiencies of counsel must be supported by the record. Johnson v. State, 691 S.W.2d 619, 626-27 (Tex.Crim.App. 1984). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; McFarland v. State, 928 S.W.2d at 500. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We do not inquire into trial strategy unless no plausible basis exists for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). The fact that other counsel might have tried the case differently will not support a finding of ineffectiveness. Small v. State, 692 S.W.2d 536, 539 (Tex.App.-Dallas 1985, pet. ref'd). Thus, conduct must be judged on the facts of the particular case, and allegations must be firmly founded in the record. Id. When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions. Id. Our speculation on the reasons for trial counsel's actions is "not material." Id. Without trial counsel's explanation of the reasons for the action or inaction alleged as error, an appellant will have difficulty overcoming the strong presumption that counsel's decisions fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). For example, "in the absence of evidence of counsel's reasons for the challenged conduct, an appellate court `commonly will assume a strategic motivation if any can possibly be imagined,' 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999), and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001), cert. denied, 123 S.Ct. 1351 (2003). This is a direct appeal from the trial court's judgment. Appellant did not develop evidence of his trial counsel's trial strategy through a hearing on a motion for new trial. Appellant asserts his trial counsel was ineffective throughout all phases of the trial and the cumulative effect was reversible. We discuss the points in turn. Pre-Trial
In his first point of error, appellant claims his trial counsel was ineffective during pre-trial. At the pre-trial hearing, counsel apparently had misplaced copies of the police reports and supplements and a copy of the appellate record from the first trial. Additionally, counsel appears to have been unaware he was not entitled to the State's witness list prior to voir dire. Counsel then presented motions to the court which had already been addressed in the court's discovery order. Appellant asserts counsel's performance at the pre-trial hearing indicates counsel was not familiar with basic criminal procedure and was thus ineffective. However, appellant fails to demonstrate the results of the trial would have been different had trial counsel's performance at this pre-trial hearing been more efficient. Strickland, 466 U.S. at 700; McFarland, 928 S.W.2d at 500. We overrule Appellant's point of error number one. Voir Dire
In point of error number two, appellant asserts counsel was ineffective during the voir dire process. Appellant first complains counsel rose when the oath was administered to the jury and the court had to instruct him to be seated. Appellant next complains counsel failed to question the prospective jurors regarding their experience with domestic violence. However, the record reflects the State questioned the prospective jurors extensively on this issue. Additionally, at the beginning of his voir dire examination, appellant's counsel informed the prospective jurors that he was going to make his portion of the voir dire as understandable as possible with as little repetition as possible. No further explanation was given for trial counsel's failure to question the prospective jurors regarding their experiences with domestic violence. When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Jackson, 877 S.W.2d at 772. We will not speculate on the reason for trial counsel's decision. We conclude counsel's failure to further question the prospective jurors regarding their experience with domestic violence was not ineffective assistance. Appellant next complains trial counsel demonstrated his lack of understanding of basic criminal law by continued misstatements of the law regarding the court's authority to set the case for trial, the proper elements of the offense, the fact that an indictment is not evidence, the presumption of innocence, the burden of proof, conjunctive and disjunctive pleading, consideration of probation, and proper courtroom behavior. Appellant asserts counsel's performance at voir dire indicates that counsel was not familiar with basic criminal law and procedure and was in fact ineffective. However, appellant fails to demonstrate the results of the trial would have been different had trial counsel's performance at voir dire been more efficient. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; McFarland, 928 S.W.2d at 500. We overrule appellant's second point of error. Guilt/Innocence Phase
In his third point of error, appellant asserts counsel was ineffective during the guilt/innocence phase of trial. First, appellant argues counsel opened the door to extraneous evidence of domestic violence in his opening statement by referring to other arguments between appellant and Denise. However, the record reflects no evidence of extraneous offenses was introduced during the guilt/innocence phase of trial. As another example of ineffective assistance, appellant asserts "after counsel's dismal voir dire performance, the trial court asked the public defender appointed to the court to assist Mr. McBeth at trial. Attorney Larry Miller was present when the State began its case in chief." However, not only does the record fail to reflect any involvement by the trial court in Mr. Miller's representation of appellant, Mr. Miller was introduced as appellant's counsel prior to voir dire. This constitutes no evidence of ineffective assistance. Appellant next asserts trial counsel's unsuccessful efforts to have a trial exhibit admitted into evidence demonstrates ineffective assistance. The exhibit depicted a recent picture of the crash site. Because the picture failed to depict the crash site as it appeared on the date of the offense it was inadmissible. Although the exhibit was excluded from evidence, the testimony regarding the exhibit was allowed. Appellant has failed to demonstrate trial counsel's efforts to have the exhibit admitted into evidence were outside the wide range of professionally competent assistance or that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687, 690; Hernandez, 726 S.W.2d at 55. Appellant also points to various mistakes made during the trial, including questions which required a witness to speculate, calling a witness by the wrong name, misstating the facts, inartfully phrasing questions, stating the wrong date of the offense, asking questions which violate a motion in limine, asking questions calling for hearsay, and misstating the law during closing arguments. Additionally, appellant asserts the fact that the trial court directed trial counsel not to speak over a witness and to state his ground for an objection demonstrated ineffective assistance. Appellant bears the burden of showing ineffective assistance of counsel by a preponderance of the evidence. See Moore, 694 S.W.2d at 531. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. Although appellant is entitled to effective assistance of counsel, he is not entitled to perfect or errorless counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App. 1992). Reviewing the record as a whole, we conclude appellant has not met his burden of showing trial counsel's performance fell below an objective standard of reasonableness. We overrule appellant's third point of error. Punishment
In his fourth point of error, appellant contends his trial counsel continued to show his incompetence during the punishment phase of trial. First, he asserts the presence of one of appellant's witnesses in the courtroom after the rule of evidence had been invoked demonstrated a lack of understanding of courtroom procedures and the failure to have a full command of the law indicating ineffective assistance of counsel. However, the record fails to reflect the presence of the witness in the courtroom was a result of an act or omission on the part of trial counsel. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The record also fails to reflect that testimony of any defense witness was later excluded because of a violation of the rule of evidence. Appellant has, therefore, failed to show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. In an effort to support his claim that he received ineffective assistance of counsel during the punishment phase of trial, appellant next points to the fact that the trial court had to stop counsel from asking questions that required the witness to speculate and that involved hearsay evidence. Appellant has not shown that trial counsel's representation at this stage of trial fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was functioning below the reasonably effective counsel guaranteed by the state and federal constitutions. See Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. We overrule appellant's fourth point of error. Cumulative Effect
In his fifth point of error, appellant contends the cumulative effect of trial counsel's errors denied appellant a fair trial and serves to undermine the confidence in the proceedings. Reviewing the record as a whole, we conclude appellant has not met his burden of showing there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. We overrule appellant's fifth point of error. We affirm the judgment of the trial court.