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Ward v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 6, 2017
No. 06-16-00136-CR (Tex. App. Jun. 6, 2017)

Opinion

No. 06-16-00136-CR

06-06-2017

MICHAEL ALEXANDER WARD, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 297th District Court Tarrant County, Texas
Trial Court No. 1450385R Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

A Tarrant County jury found Michael Alexander Ward guilty of continuous sexual abuse of a child or children under fourteen years of age. Ward was sentenced to forty-five years' incarceration.

Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.

On appeal, Ward argues that his counsel rendered ineffective assistance in failing to: (1) object to testimony that the child victims were telling the truth; (2) object to the use of an investigator with Child Protective Services as an outcry witness; and (3) object to police testimony that one child's outcry was consistent with the original report of abuse given to police by the child's mother.

Because Ward failed to overcome the presumption that his counsel's decisions were reasonable, we affirm the trial court's judgment.

I. Ward Failed to Rebut the Presumption that his Counsel's Decisions Were Reasonable

As many cases have noted, the right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687-88 (1984); see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The first Strickland prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "This measure of deference, however, must not be watered down into a disguised form of acquiescence." Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987) (finding ineffective assistance where counsel failed to request medical records and relied on court-appointed competency examination when he knew client had escaped from mental institution).

The second Strickland prong (to which reference is sometimes made as "the prejudice prong") requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "A reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. Thus, in order to establish prejudice,

an applicant must show "that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable." [Id.] at 687, 104 S.Ct. 2052. It is not sufficient for Applicant to show "that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. Rather, [he] must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052.

. . . .

The applicant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Allegations of ineffectiveness must be based on the record, and the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App. 1999). The reviewing court must look to the totality of the representation, and its decision must be based on the facts of the particular case, viewed at the time of counsel's conduct so as to eliminate hindsight bias. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In all cases, the "ultimate focus of
inquiry must be on the fundamental fairness of the proceeding." Id. at 696, 104 S.Ct. 2052.
Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Allegations of ineffectiveness "must be firmly founded in the record." Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999)). The Strickland test "of necessity requires a case-by-case examination of the evidence." Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)).

The Texas Court of Criminal Appeals has said, "Trial counsel 'should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Ward contends that his counsel was ineffective because he failed to: (1) object to testimony that the child victims were telling the truth; (2) object to the use of an investigator with Child Protective Services as an outcry witness; and (3) object to police testimony that one child's outcry was consistent with the original report of abuse given to police by the child's mother. However, because there is no evidence in the record showing counsel's reasons for not objecting as Ward concludes he should have, Ward has "failed to rebut the presumption that trial counsel's decision was in some way—be it conceivable or not— reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Edwards v. State, 280 S.W.3d 441, 444 (Tex. App.—Fort Worth 2009, pet. ref'd). Therefore, we overrule Ward's points of error.

Generally, in a case such as this in which there is no record relative to counsel's decisions and actions, an appellant has a more appropriate remedy in seeking a writ of habeas corpus to allow him the opportunity to develop evidence to support his complaint. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000) (noting that a post-conviction writ proceeding is the preferred method for gathering the facts necessary to substantiate an ineffective assistance of counsel claim).

We affirm the trial court's judgment.

Bailey C. Moseley

Justice Date Submitted: May 17, 2017
Date Decided: June 6, 2017 Do Not Publish


Summaries of

Ward v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 6, 2017
No. 06-16-00136-CR (Tex. App. Jun. 6, 2017)
Case details for

Ward v. State

Case Details

Full title:MICHAEL ALEXANDER WARD, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Jun 6, 2017

Citations

No. 06-16-00136-CR (Tex. App. Jun. 6, 2017)

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