No. 04-04-00675-CR
Delivered and Filed: November 29, 2006. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-5460, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: CATHERINE STONE, Justice.
Jason Stogiera appeals his conviction for criminal solicitation with the intent to commit aggravated sexual assault of a child and his resulting sentence of fifteen years. On November 23, 2005, this court issued an opinion abating the appeal and remanding to the trial court for an evidentiary hearing on Stogiera's motion for new trial. In his motion, he alleged ineffective assistance based on his counsel's failure to investigate and present psychological evidence relating to his lack of intent and as mitigation evidence. On remand, the trial judge denied his motion for new trial and now Stogiera asserts the same ineffective assistance of counsel argument on appeal. We overrule Stogiera's issue and affirm the trial court's judgment.
Background
Stogiera asserts in his supplemental brief that, based on the motion for new trial record, he has established that his trial counsel rendered ineffective assistance of counsel by failing to investigate and present psychological evidence that would have supported his lack of intent defensive theory. Stogiera also argues that his counsel was ineffective for failing to investigate and present the same evidence as mitigating facts at the punishment phase of the trial. Stogiera raises his arguments under both the United States and Texas Constitutions. The facts of this case have already been set forth at length in our earlier opinion and need not be repeated here. See Stogiera v. State, 191 S.W.3d 194 (Tex.App.-San Antonio 2005, no pet.). To the extent particular facts are important to the issue before us, they are discussed below. In our prior opinion, we held that the evidence was legally and factually sufficient to support Stogiera's conviction. Id. at 197-98. We now resolve Stogiera's remaining issue on appeal, his allegation of ineffective assistance of counsel. Discussion
The United States and Texas Constitutions guarantee the right to reasonably effective counsel. U.S. Const. amend. VI; Tex. Const. art I, § 10. To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A reasonable probability is sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. On review, we give great deference to counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). We look to the totality of the representation at trial, not to isolated acts or omissions of counsel in hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that the counsel's actions were the result of sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). When addressing a counsel's duty to investigate the facts and interview or call potential witnesses, we must "conduct an objective review of [counsel's] performance, measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Westerman v. State, No. PD-1314-05, 2006 WL 2694388 *4 (Tex.Crim.App. September 20, 2006) ( citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)). We cannot "indulge in Monday-morning quarterbacking or second-guessing informed by hindsight or later developments." Id. Stogiera claims that his counsel's failure to investigate and present psychological evidence relating to his lack of intent constituted performance so deficient as to substantially prejudice his right to due process. "To establish deficient performance, a petitioner must demonstrate that counsel's representation `fell below an objective standard of reasonableness.'" Wiggins, 539 U.S. at 521, (citing Strickland, 466 U.S. at 688). Counsel's representation may meet this standard if counsel fails to conduct an adequate pretrial investigation. See Wiggins, 539 U.S. at 533-34. Counsel has a duty to make reasonable investigations or reasonable decisions that make such investigations unnecessary. Id. at 521-22. A counsel's particular decision not to investigate must be directly assessed for reasonableness in all the relevant circumstances, applying much deference to counsel's judgments. Id. The sole witness at the hearing for the motion for new trial was Stogiera's trial counsel, James Bruner. The record demonstrates that Bruner had no indication that there was any kind of psychological problem with Stogiera. Bruner testified that he spent many hours with Stogiera, interviewed members of Stogiera's family, and when Bruner repeatedly asked if there was anything in Stogiera's background that would be helpful to the case, Bruner was not told about any abuse history or mental health problems. Additionally, there was no report in the pre-sentence investigation, which was conducted by a probation officer, that Stogiera was ever sexually abused. Therefore, based on his own professional experience, Bruner found that there was absolutely no evidence that Stogiera had ever been abused or had a mental illness. Finally, Bruner testified that information regarding Stogiera's mental health or alleged abuse would have been very damaging to his trial strategy. Bruner felt that such information would have negated his effort to establish Stogiera's lack of intent and would have led the jury to believe that Stogiera was inclined or had a compulsion to commit sex acts against children. Because there was no evidence that Bruner knew about Stogiera's mental health problems or was aware that Stogiera may have been abused in the past, Stogiera did not prove that Bruner's trial strategy was unsound. Stogiera's first issue is overruled. Stogiera also argues that his counsel's failure to investigate and present evidence on mitigation during punishment constituted performance so deficient as to substantially prejudice his right to due process. Where the issue is whether trial counsel conducted an adequate investigation for potential mitigating evidence, "we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Stogiera's] background was itself reasonable." Id. at 523. Strickland does not require counsel to investigate every conceivable line of mitigating evidence nor does it require defense counsel to present mitigating evidence at sentencing in every case. Id.; Freeman v. State, 167 S.W.3d 114, 117-18 (Tex.App.-Waco 2005, no pet.). As stated above, Stogiera's counsel, Bruner, found no evidence of Stogiera's alleged psychiatric or abuse issues through his investigational interviews with Stogiera and his family or from the police pre-sentence investigation. Additionally, Bruner testified that a psychological evaluation is not required as part of standard practice and that he would have needed some indication that it was necessary in order to consider conducting one. He stated that if his reasoning was not correct, attorneys would have to conduct a psychiatric evaluation on every client based on a chance that there might be a psychiatric problem of which the counsel is not aware. Additionally, Bruner testified that he knew the judge well and was sure that if the judge believed that Stogiera was compelled to commit sex acts involving young children because of psychological issues, the judge would have given Stogiera the maximum twenty-year sentence instead of the fifteen-year sentence Stogiera received. From the facts and testimony presented, it is clear that Bruner had no knowledge prior to the trial that Stogiera potentially suffered from abuse or a mental illness, and even if he had been aware of such information, Bruner was rational not to provide any such evidence to the judge. Stogiera's second issue is overruled. In his final issue, Stogiera argues that his trial counsel's performance was so deficient as to substantially prejudice him in violation of his right to effective counsel under Article I, Section 10 of the Texas Constitution. However, because Stogiera failed to establish his allegations of ineffective assistance of counsel in violation of the Federal Constitution, his claims under the Texas Constitution also fail because the same Strickland standard is used in Texas Constitutional claims based on ineffective assistance of counsel. Hernandez v. State 988 S.W.2d 770, 773-74 (Tex.Crim.App. 1999). Therefore, Stogiera's third issue is overruled. Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.