Opinion issued December 23, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01041-CR
CHARLES FRANKLIN MCAFEE, Jr., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 02CR2610
A jury found appellant Charles Franklin McAfee, Jr. guilty of the offense of aggravated robbery. McAfee stipulated to the truth of two enhancement paragraphs that he had two prior felony convictions, and the trial court, having found the enhancements true, assessed punishment at twenty-eight years’ confinement. In this appeal, McAfee contends that: (1) the trial court erred in granting the State’s request to amend the indictment on the day of trial; and (2) he received ineffective assistance of counsel. Facts
On June 8, 2002, at 5:20 a.m., McAfee entered the Rush-In Grocery, a convenience store in Santa Fe, Texas. The cashier, Raye Ann Clark, testified at the trial that McAfee entered the store and began looking at oil while she waited on another customer. After the customer exited the convenience store, McAfee brought the oil up to the counter. As Clark examined the oil to locate its price, McAfee pulled out a knife and asked her if she had ever been robbed. McAfee jumped up onto the counter, asked Clark to open the cash drawer, and requested her to go to the cooler. Clark moved towards the cooler and then she heard McAfee leave the store. She then ran to the front of the store, where she saw a two-tone Bronco exiting the parking lot. Clark called emergency assistance to report the robbery.
Captain G. Keith Meenen, along with several other members of the Santa Fe Police Department, arrived at the convenience store to investigate the robbery. Clark gave the responding officers a description of the suspect and the vehicle he was driving. McAfee became a suspect in the robbery almost six months later, when a patrol officer pulled him over during a routine traffic stop. The officer noted the similarities between the description of the suspect and the Bronco to the driver and his vehicle that he had stopped. A short time later, Clark identified McAfee out of a six-person photographic lineup. Meenen filed an arrest warrant for McAfee based on the positive identification and the matching vehicle description.
Indictment Amendment
In his first issue, McAfee contends that the trial court erred in granting the State’s request to amend its indictment on the day of trial. After the trial court called McAfee’s case to trial and seated the jury panel, the prosecutor presented the trial court with a motion for leave to amend the indictment. The original indictment states that the victim of the aggravated robbery is Andy McDonald, the store owner. In her amendment, the prosecutor sought to change the name of the victim to Ray Anne Clark, the store clerk. The trial court then inquired of McAfee’s counsel:
[The Court]: Is there any objection to the amendment of the indictment at this time?
[Trial Counsel]: Does that motion have an order with it?
[The Court]: No.
[Trial Counsel]: If you could handwrite some order –
[The Court]: Oh, I will write an order.
[Prosecutor]: Can the judge make a docket sheet entry?
[The Court]: Yeah, I will make a docket sheet entry and write that the indictment has been amended. I guess my question to you, Mr. Donahue, really is does your client, if I amend the indictment, accept the indictment?
Is he waiving his 10 days notice or is he going to proceed to trial at this time?
[Trial Counsel]: He is waiving the 10 days notice, Your Honor.
[The Court]: Okay. The motion by the state [sic] to leave to amend the indictment is granted, . . . .
[Trial Counsel]: . . . I want to talk to my client just a moment further about this amendment just for a moment, please.
[The Court]: Okay. Do you want me to ask your client if he is apprised of his rights for 10 days and have you explained it to him?
[Trial Counsel]: I have discussed it with him.
[The Court]: So, you don’t think I need to do that?
[Trial Counsel]: No, ma’am.
[Prosecutor]: Do you want to put on the record that you advised him?
[Trial Counsel]: No.
McAfee concedes that his trial counsel failed to object to the amendment, yet he maintains that his right to a ten-day continuance is a critical and substantive right, and thus the trial court should have directed its question to him. See Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 1989) (“on request of the defendant, the court shall allow not less than 10 days . . . to respond to the amended indictment or information”). The first time McAfee complained of the failure to receive ten days’ notice, however, was during the motion for new trial hearing.
The State responds that article 28.10(a) expressly requires a criminal defendant to request the ten-day period to respond to an amended indictment. See Tex. Code Crim. Proc. Ann. art. 28.10(a). The State contends that trial counsel waived McAfee’s objection to the indictment amendment, and thus he did not properly preserve his issue for appeal.
We agree. While McAfee was entitled to the ten-day period in order to respond to the amendment, article 28.10(a) requires him to request the continuance. See Tex. Code Crim. Proc. Ann. art. 28.10(a). We note that the pertinent part of article 1.14 of the Code of Criminal Procedure states that a “defendant in a criminal prosecution for any offense may waive any rights secured him by law.” See Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 1977 & Supp. 2004-2005). Further, “if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment . . . before the date the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.” See Tex. Code Crim. Proc. Ann. art. 1.14(b); see also Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (finding that prerequisite to presenting a complaint for appellate review is showing in record that complaint was made to trial court by request, objection, or motion that was timely and sufficiently specific to make trial court aware of grounds of complaint); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998) (holding that in order to preserve error for appellate review, complaining party must make timely, specific objection). Here, the record clearly indicates that trial counsel waived the notice period in open court and within McAfee’s presence. In his answer to the trial court, trial counsel stated he had discussed the indictment amendment and notice period with McAfee. We therefore hold that McAfee has waived his complaint as to the indictment amendment and the lack of a ten-day continuance. Ineffective Assistance of Counsel
In his second issue, McAfee contends that his trial attorney failed to render effective assistance of counsel. McAfee further contends that his trial counsel was ineffective because he failed to object to the State’s motion for leave to amend the indictment and he refused to allow McAfee to present witnesses on his behalf. To prevail on a claim of ineffective assistance of counsel, the defendant must show (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, 2064 (1984).
The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove by a preponderance of the evidence that his counsel’s representation objectively fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693-94; see also Thompson, 9 S.W.3d at 812. The Court of Criminal Appeals has observed that the “purpose of this two-pronged test is to judge whether counsel’s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see also Thompson, 9 S.W.3d at 812-13 (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992)). A reviewing court must indulge a strong presumption, however, that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and the record affirmatively must demonstrate the alleged ineffectiveness. See Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Thompson, 9 S.W.3d at 813.
Failure to Object to Indictment Amendment
McAfee claims that trial counsel’s failure to object to the State’s motion to amend the indictment constitutes ineffective assistance of counsel. Specifically, he claims that in waiving the ten-day period, counsel did not have time to adequately prepare his defense. McAfee contends that the amendment naming a different complaining witness caused a major change in the defense of the case.
At the hearing on the motion for new trial, McAfee stated he did not waive his right to ten days to prepare for trial, and therefore his trial counsel was ineffective in waiving this right. Trial counsel testified at the motion for new trial hearing that he was aware of the error in the indictment alleging the wrong complainant’s name. He stated that “right up until we walked into trial beginning on that Tuesday morning, I was basically hoping to get a windfall.” Trial counsel specifically stated that the “defect in the indictment in this case made it difficult to try to sneak into the Court, and that’s what the strategy was.” At the hearing, trial counsel clearly stated that his failure to challenge the indictment or request the ten days’ continuance was part of his trial strategy, as opposed to an oversight on his part. Thus, McAfee has not overcome the presumption that his trial counsel’s inaction was the result of reasonable trial strategy. Trial counsel stated at the motion for new trial hearing that he was aware of the error in the indictment, but it was his trial strategy to try to “sneak [the defect] into the Court.” We conclude that the record does not indicate that trial counsel’s failure to object was unreasonable under the circumstances.
Failure to Allow Defendant to Present Witnesses
Next, McAfee contends that he received ineffective assistance of counsel because his trial counsel failed to call certain witnesses at his trial. He cites Rock v. Arkansas for the proposition that it is the personal right of a defendant to call witnesses on his behalf. 483 U.S. 44, 49-53, 107 S. Ct. 2704, 2708-10 (1987). He also contends that this right is personal to the defendant and cannot be waived by the trial court or by defense counsel. United States v. Teague, 953 F.2d 1525, 1532, (11th Cir. 1992). These cases are easily distinguished from our facts. Both Rock and Teague stand for the proposition that the rights of a criminal defendant to testify in his own behalf may not be waived by defense counsel. See Rock, 483 U.S. at 51-53, 107 S. Ct. 2708-10; see also Teague, 953 F.2d at 1532.
A criminal defense lawyer has the responsibility to conduct a legal and factual investigation and to seek out and interview potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); see also Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). An appellant who complains about trial counsel’s failure to call witnesses must show the witnesses were available and that he would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Rodd, 886 S.W.2d at 384. The decision to call a witness is generally a matter of trial strategy. See Rodd, 886 S.W.2d at 384 (citing State v. Thomas, 768 S.W.2d 335, 337 (Tex. App.—Houston [14th Dist.] 1989, no pet.).
At the motion for new trial hearing, McAfee complained that trial counsel did not call the witnesses he requested. However, McAfee failed to introduce any evidence that these witnesses were available and that his defense would have benefitted from their testimony. Rodd, 886 S.W.2d at 384. Without more, we cannot hold that McAfee received ineffective assistance of counsel.
Moreover, trial counsel testified at the hearing that he went to see and interview each defense witness at least three times. Trial counsel stated that one of the witnesses that McAfee requested “contradicted everything else everybody said, and I had a question about what to do about all of it.” The record indicates that trial counsel made a reasonable factual investigation and sought out potential witnesses for McAfee’s defense. We presume that his failure to call certain witnesses was reasonable trial strategy and McAfee has not overcome that presumption. We hold that McAfee received effective assistance of counsel.
Conclusion
We conclude that: (1) McAfee failed to object to the State’s request to amend the indictment on the day of trial, thereby waiving his first issue; and (2) he received effective assistance of counsel. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Taft, Jennings, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).