Opinion issued March 25, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00419-CR
A.G. RADCLIFF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 758269
MEMORANDUM OPINION
Appellant, A.G. Radcliff, pleaded guilty to sexual assault. He received eight-years’ deferred adjudication and was ordered to pay $700 in fines and serve 20 hours per month of community service. After failing two drug tests, appellant was adjudicated and sentenced to confinement for 20 years. On appeal, appellant contends (1) he received ineffective assistance of counsel at his sentencing hearing and (2) the trial court erred in denying his motion for new trial on the basis of ineffective assistance of counsel at his sentencing hearing.
We affirm.
Facts & Procedural History
Appellant received eight-years’ deferred adjudication after pleading guilty to sexually assaulting his niece. Subsequently, appellant tested positive for cocaine use on two occasions. On the basis of appellant’s cocaine use, the State requested an adjudication of appellant’s guilt. At the adjudication hearing, appellant pled true to the allegations of cocaine use and asked to be placed on a drug rehabilitation program in lieu of prison.
Numerous members of appellant’s family—including the complainant’s mother—appeared at the sentencing hearing to testify on appellant’s behalf and to request drug treatment. Nancy Frank, appellant’s sister, appeared at the hearing, but was not called to testify. Also, the complainant in the underlying cause did not appear but sent the trial court a letter that requested appellant be placed on a drug rehabilitation program instead of being given a prison sentence.
The trial court adjudicated appellant’s guilt and assessed punishment at confinement for 20 years. After the time to request a new trial had expired, appellant sought an out-of-time appeal, asserting that he lacked representation during the 30-day period following judgment. The Court of Criminal Appeals agreed, directing the trial court to allow the out-of-time appeal. Subsequently, appellant’s appeal came before this Court and we abated the appeal, remanding the cause to the trial court for the filing of an out-of-time motion for new trial.
The motion for new trial that followed included an affidavit from John Choate, appellant’s trial counsel during the sexual assault and adjudication hearings. Appellant also presented to the court affidavits from the members of his family who testified on his behalf at the sentencing hearing, as well as Nancy Frank. The trial court considered appellant’s motion for new trial on submission and denied it.
Ineffective Assistance of Counsel
In his first point of error, appellant asserts that he was denied effective assistance of counsel during his sentencing hearing. Specifically, appellant asserts that trial counsel was ineffective for the following reasons:
1. Although trial counsel offered Teen Challenge as a possible drug rehabilitation program for the court to consider, he did not offer alternative programs;
2. Trial counsel failed to have appellant’s customers testify concerning his full time employment;
3. Trial counsel failed to clarify the time frame in which appellant lacked drug treatment prior to his cocaine use;
4. Trial counsel failed to expound on appellant’s drug problem during closing arguments;
5. Trial counsel’s closing argument requested a second chance for appellant’s family instead of appellant, himself;
6. Trial counsel failed to call Nancy Frank as a character witness;
7. Trial counsel failed to discover that appellant had a limited I.Q. and poor reading comprehension skills;
8. Trial counsel failed to acquire a basic knowledge of drug dependency and treatment or to understand appellant’s attitude towards appellant’s alcohol and drug addiction;
9. Trial counsel failed to understand the character witnesses’ attitudes concerning appellant, drug addiction, and incest;
10. Trial counsel failed to prepare appellant’s witnesses;
11. Trial counsel advised appellant that appellant could not appeal the trial court’s ruling on the motion to adjudicate.
To determine whether a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The two-pronged test for ineffective assistance of counsel set out in Strickland applies to sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). First, appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel’s performance was so prejudicial that it deprived him of a fair trial. Id.
Thus, appellant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, writ ref’d). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no writ). Appellant must overcome the presumption that trial counsel’s strategy was sound. Gamble, 916 S.W.2d at 93.
An appellant “making a claim of ineffective assistance 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, 104 S. Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
In the instant case, appellant’s first six allegations of ineffective assistance of counsel concern trial decisions that were strategic in nature. Although appellant’s motion for new trial included trial counsel’s affidavit, the affidavit does not address trial counsel’s trial strategy. Thus, the record is silent as to the reasons and strategy behind trial counsel’s actions. We presume both that trial counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). To deviate from these presumptions on the basis of the limited record before use would call for speculation, which we will not do. Gamble, 916 S.W.2d at 93.
In his seventh allegation of ineffective assistance of counsel, appellant asserts that trial counsel failed to discover appellant had limited reading comprehension skills. Although trial counsel indicated in his affidavit that he believed appellant to be literate at the time of appellant’s plea, appellant concedes that he intentionally withheld his illiteracy from trial counsel because appellant “was too embarrassed to admit that [he] could not read.” Thus, trial counsel’s ignorance was due to appellant’s intentional withholding of the information. We will not fault trial counsel for the intentional withholding of vital information by his client. See Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).
In his eighth and ninth allegations of ineffective assistance of counsel, appellant contends that trial counsel failed to sufficiently investigate the nature of drug dependency, as well as appellant’s and his family’s attitude towards alcohol, drug abuse, and incest. Despite appellant’s contention, the record before us does not indicate the extent of trial counsel’s investigation. Further, there is no evidence in the record that trial counsel lacked an understanding of the complained of subjects. For a finding that trial counsel failed to properly investigate a matter, the record must affirmatively show how trial counsel’s investigation was lacking. See Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The record before this court makes no such showing; thus, we are unable to determine that trial counsel failed to properly investigate the complained of matters without engaging in speculation, which—as we have already noted—we will not do.
Appellant’s tenth allegation of ineffective assistance of counsel contends that trial counsel failed to prepare appellant’s witnesses before the sentencing hearing. The record shows trial counsel called five witnesses to testify during the punishment hearing. Appellant, himself, was included in that number. These witnesses testified as to appellant’s good moral character, his battles with drug and alcohol addiction, and his ability to overcome addiction with the aid of a drug rehabilitation program. The witnesses’ affidavits indicate that trial counsel did not discuss with them the questions that he would ask or the manner in which the witnesses should respond. However, they do not indicate how additional preparation of the witnesses could have affected the outcome of the trial. The witnesses’ testimony at the sentencing hearing contained no glaring irregularities that could have been avoided by additional preparation, and appellant does not indicate how further preparation would have improved such testimony. Without a showing of prejudice, we cannot conclude that trial counsel’s preparation of the witnesses constituted ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Appellant’s eleventh allegation of ineffective assistance of counsel contends that trial counsel advised appellant that he could not appeal the trial court’s ruling on the motion to adjudicate. Indeed, trial counsel’s affidavit states that he “advised [appellant] that he had no right to appeal from the judge’s Motion to Adjudicate and that he could hire other counsel to handle any appellate questions that he may have.” We do not find appellant’s statement constituted ineffective assistance of counsel as it was generally a correct statement of the law, and trial counsel further recommended that appellant seek appellate counsel for more information regarding his specific rights to appeal.
After considering appellant’s allegations regarding ineffective assistance of counsel, we hold that appellant has failed to show by a preponderance of the evidence that trial counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms or that trial counsel’s performance was so prejudicial that it deprived appellant of a fair trial.
We overrule appellant’s first point of error.
Motion for New Trial
In his second point of error, appellant asserts that the trial court erred in denying him a new trial, because appellant received ineffective assistance of counsel at his sentencing hearing.
The standard of review of the denial of a motion for new trial is abuse of discretion. Reyes v. State, 82 S.W.3d 351, 353 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or in other wording, if it acts without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
In the instant case, the applicable guiding rules and principals to which the trial court was to adhere are the same Strickland standards enunciated and employed above. Having determined that trial counsel was not ineffective under Strickland, we also hold that the trial court did not abuse its discretion in denying appellant’s motion for new trial.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).