No. 04-15-00431-CR No. 04-15-00432-CR
From the 437th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2015CR0290 & 2015CR0291
Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
A jury convicted appellant David Jermain Hawkins of two counts of injury to a child. On appeal, Hawkins contends his trial counsel was ineffective. We affirm the trial court's judgment.
A detailed rendition of the facts is unnecessary for the disposition of this appeal. Accordingly, we provide only a brief background for context.
On the morning in question, a police officer responded to an anonymous 911 domestic disturbance call. When the officer arrived, he found a woman, who was crying hysterically, and the woman's three children, who appeared scared. The officer saw a red area on the woman's neck and arm. Two of the children appeared to have suffered injuries as well, including bruises and a bloody nose. The third child did not have any sign of injuries. After investigating, the officer discovered the woman's boyfriend, Hawkins, had assaulted her and the two children.
Hawkins was arrested and charged with two counts of injury to a child. A jury found Hawkins guilty on both counts, and the trial court sentenced him to thirty years' confinement and assessed a $2,000 fine. Hawkins then perfected this appeal.
On appeal, Hawkins argues he received ineffective assistance of counsel. Specifically, Hawkins argues his trial counsel was ineffective because he failed to object to a comment made by the State during closing argument or request a mistrial based on the comment.
Standard of Review and Applicable Law
To prevail on an ineffective assistance of counsel claim, an appellant must show: (1) trial counsel's representation was deficient, and (2) the deficient performance prejudiced the defense such that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012); Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio 2008, no pet.). To establish deficient performance, an appellant must prove by a preponderance of the evidence that trial counsel's representation fell below an "objective standard of reasonableness" based on prevailing professional norms. Strickland, 466 U.S. at 688; Jimenez, 364 S.W.3d at 883; Badillo, 255 S.W.3d at 129. This does not mean "the accused is entitled to errorless or perfect counsel." Badillo, 255 S.W.3d at 129. We indulge in a strong presumption that trial counsel's actions fell within the proper range of professional reasonableness and his decisions were motivated by sound trial strategy. Id. (citing Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005)).
To overcome the foregoing presumption, an allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. (citing Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). The appellant bears the burden of rebutting this presumption by producing evidence establishing why trial counsel acted or failed to act as he did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Paul v. State, 419 S.W.3d 446, 460 (Tex. App.—Tyler 2012, pet. ref'd). We will not find ineffectiveness based on mere speculation. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd)).
When, as here, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating it is rare case in which appellate court finds ineffective assistance when record is silent on trial strategy); Paul, 419 S.W.3d at 461 (highlighting that record that specifically focuses on trial counsel's conduct is necessary for review); Badillo, 255 S.W.3d at 129 (stating silent record on reasoning behind trial counsel's actions is sufficient to deny relief). As recently stated by the Texas Court of Criminal Appeals, "in the absence of the evidence of counsel's reasons for the challenged conduct, an appellate court 'commonly will assume a strategic motivation if any can possibly be imagined.'" Ex Parte Saenz, No. WR-80,945-01, 2016 WL 1359214, at *7 (Tex. Crim. App. Apr. 6, 2016) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). In cases where the record is silent, we 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).
Hawkins filed a motion for new trial, but he did not raise ineffective assistance of counsel in the motion.
With the foregoing principles in mind, we now turn to Hawkins's complaint. Hawkins complains that during its closing argument, the State made an improper, "racially-charged" comment about him, and his trial counsel failed to object to the comment or request a mistrial. On appeal, the State concedes the comment was improper. The State contends, however, that Hawkins's allegation of ineffectiveness is not firmly founded in the record because the record is silent as to why trial counsel did not object or request a mistrial.
During closing argument, the State addressed the defense's allegation that the child victim's mother spoke to Hawkins while he was in jail and told Hawkins she wanted to marry him. The State, in relevant part, said:
Ladies and gentlemen, please go back and play Defendant's Exhibit 5 again. . . . And then listen to what she said . . . she's a woman. She's abused. She is an abused woman. This is an abused woman who says, Thank God I'm talking to this crazy negro, he's in jail, and he ain't anywhere near me. And I'm going to make sure he never comes anywhere ever near me. That's what that was. Does that sound like she's pining for him?"
As pointed out above, Hawkins's trial counsel did not object to the comment or request a mistrial.
The record reflects that at Hawkins's request, his trial counsel filed a pro se "Objections to Trial Court Prosecutorial Misconduct," complaining the trial court allowed the State to refer to him as a "crazy negro" and requesting a mistrial. The trial court took note of the filing. On appeal, Hawkins appears to be arguing his trial counsel failed not only to request a mistrial after the State made the comment, but also to pursue a ruling on his pro se request for a mistrial. We construe these arguments together. --------
We agree the alleged ineffectiveness is not firmly established in the record. See Thompson, 9 S.W.3d at 812; Badillo, 255 S.W.3d at 129. "The decision to object to a particular [jury] argument almost always involves trial-strategy considerations." Bollinger v. State, 224 S.W.3d 768, 781 (Tex. App.—Eastland 2007, pet. ref'd). Here, the record is silent as to the reasoning or strategy behind trial counsel's decision not to object to the State's comment made during its closing argument, and we will not speculate about trial counsel's decision. See Thompson, 9 S.W.3d at 812; Badillo, 255 S.W.3d at 129; Bollinger, 224 S.W.3d at 781; Henderson, 29 S.W.3d at 624. It is reasonable to conclude trial counsel may have determined that an objection to disregard the comment would only bring further attention to the State's allegation that Hawkins abused the witness or that Hawkins was crazy. See Saenz, 2016 WL 1359214, at *7; see, e.g., West v. State, 474 S.W.3d 785, 792 (Houston [14th Dist.] 2014, no pet.) (stating that trial counsel's failure to object to mentioning of defendant's tattoo may have been trial strategy to avoid drawing unwanted attention); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (deducing that defense counsel did not seek limiting instruction so as to not bring attention to defendant's prior "altercations" with other employees). As reiterated most recently by the court of criminal appeals, in absence of a record reflecting trial counsel's reasoning for his decision not to object or request a mistrial, we must presume trial counsel followed an appropriate trial strategy so long as any strategy can possibly be imagined. See Saenz, 2016 WL 1359214, at *7 (emphasis added); Bollinger, 224 S.W.3d at 781.
Because there are legitimate reasons trial counsel could have chosen not to object, we cannot say his conduct was so "outrageous that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at 392; Bollinger, 224 S.W.3d at 781. The State concedes that the remark "was improper," and we recognize that "racially prejudicial remarks and appeals to racial prejudice have no place in a courtroom." See Bryant v. State, 25 S.W.3d 924, 926 (Tex. App.—Austin 2000, pet. ref'd) (citing Allison v. State, 248 S.W.2d 147, 148 (Tex. Crim. App. 1952)). We therefore hold that because the record is silent as to the reasons behind trial counsel's decisions or actions, Hawkins failed to establish his trial counsel's performance was deficient. See Thompson, 9 S.W.3d at 812; Badillo, 255 S.W.3d at 129; Henderson, 29 S.W.3d at 624.
However, even if trial counsel's failure to object or request a mistrial constituted deficient performance, Hawkins has not established prejudice — the second Strickland prong. See 466 U.S. at 668; Jimenez, 364 S.W.3d at 883. In his brief, Hawkins asserts the trial court would have granted a mistrial had his trial counsel objected to the comment and requested a mistrial. However, other than making this single conclusory statement, Hawkins fails to establish by a preponderance of the evidence how the result of the trial would have been different. See Strickland, 466 U.S. at 668; Jimenez, 364 S.W.3d at 883. To prove prejudice based on trial counsel's conduct, Hawkins must show by a preponderance of the evidence that there is a reasonable probability that, but for his trial counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 668; Jimenez, 364 S.W.3d at 883. Hawkins has not made this showing. Accordingly, we hold Hawkins failed to establish prejudice. See Strickland, 466 U.S. at 668; Jimenez, 364 S.W.3d at 883.
Based on the foregoing, we overrule Hawkins's claim of ineffective assistance of counsel and affirm the trial court's judgment.
Marialyn Barnard, Justice Do Not Publish