In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00095-CR
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DANNY RENE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 294th Judicial District Court
Wood County, Texas
Trial Court No. 14,097-94
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Danny Rene Smith appeals from the trial court's denial of his post-conviction motion for DNA testing. The order was signed December 8, 2005. Smith filed a notice of appeal May 2, 2006. According to Rule 26.2, Smith had thirty days after the day the order was signed to file a notice of appeal. See Tex. R. App. P. 26.2(a)(1). Therefore, Smith had until January 9, 2006, to file a notice of appeal. Hence, this appeal is untimely, and we are without jurisdiction to hear this case.
We dismiss this appeal for want of jurisdiction.
Jack Carter
Justice
Date Submitted: May 16, 2006
Date Decided: May 17, 2006
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for aggravated assault with a deadly weapon. A Hunt County jury found Strickland guilty of attacking David Nicholson with a brick. The jury recommended a sentence of twelve years, and the trial court sentenced Strickland in accordance with the jury's verdict.
On appeal, Strickland contends, first, that the trial court erred in denying Strickland's request for a new trial and, second, that he received ineffective assistance of counsel from his trial counsel. Finding no merit to these points, we affirm the trial court's judgment.
As the sufficiency of the evidence is not questioned, only a brief overview of the facts in this case is necessary. Nicholson testified he was gathering tools from his wife's van, which was parked in front of an acquaintance's house. The house was across the street from Strickland's. Nicholson said he was kneeling or crouching down when he was hit from above on his head. Nicholson was hit two or three more times in the head and face. At one point, he was able to see his attacker, Strickland, smashing him in the face with a piece of brick or cinder block. Nicholson's wife testified she came out of the house and jumped on Strickland's back, trying to get him to stop attacking Nicholson. The investigating officer testified Nicholson exhibited several wounds, which required medical attention. The officer stated that Nicholson had blood on his face and mouth, and that he administered first aid and called for an ambulance. Although Nicholson did not lose consciousness, communication was difficult and Nicholson was "out of it." Nicholson and his wife both told the officer that Strickland had attacked Nicholson. Nicholson said Strickland had accused him of stealing from Strickland. Nicholson testified he declined to go to the hospital after the attack, but did go later that night when he started blacking out.
Strickland testified he approached Nicholson regarding a tool Strickland contended Nicholson had stolen from him. Strickland said Nicholson stood up with a baseball bat, and, in self defense, he hit Nicholson in the mouth. According to Strickland, the two fought for as long as twenty minutes. Strickland said that he was injured in the fight and that his eyebrow was torn off and he suffered cuts. He said his friend, Anne Renee McDonald, came to his house after the fight and administered first aid, including binding his cuts with "Crazy Glue" and treating his wounds with peroxide. However, when McDonald testified, she denied administering such first aid and said that Strickland was not seriously injured. She said she saw no blood on Strickland and his eyebrows "looked fine."
Trial Court Within Its Discretion To Overrule Motion for New Trial
Strickland claims the trial court erred in overruling his motion for new trial. At the hearing on that motion, Strickland presented the testimony of four witnesses, none of whom claimed to have witnessed the attack by Strickland on Nicholson. These witnesses generally said that they believed Nicholson had stolen tools from Strickland, that Nicholson had admitted taking tools from Strickland, and that Nicholson had told different renditions of the event immediately after the fight and after returning from the hospital the night of the fight.
Strickland does not contend these witnesses' testimony is newly discovered evidence. He stated at the hearing on the motion for new trial that these witnesses were known to him, his trial attorney, and his trial investigator.
The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 695 n.4 (Tex. Crim. App. 1993). An appellate court, in reviewing a trial court's ruling on a motion for new trial, should apply a deferential standard of review to the trial court's resolution of the historical facts, and may rely on implied findings of fact that are supported by the record to uphold the trial court's ruling, even where the trial court was not faced with expressly conflicting affidavits or testimony. Charles v. State, 146 S.W.3d 204, 206 (Tex. Crim. App. 2004). A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. at 208.
Strickland knew, at the time of his trial, of the four witnesses presented at the motion for new trial, and stated his attorney was also aware of them. To authorize a new trial, it generally must be shown that the evidence presented at the motion for new trial was unknown to the defendant before the original trial. Drew v. State, 743 S.W.2d 207, 227 (Tex. Crim. App. 1987); Honea v. State, 585 S.W.2d 681, 687 (Tex. Crim. App. [Panel Op.] 1979). Strickland does not assert that the jury was misinstructed, that one of his witnesses was prevented from testifying by force, that evidence was destroyed, or any of the suggested grounds for new trial exist. See Tex. R. App. P. 21.3. Nor does he direct us to any other authority under which it can be said the trial court abused its discretion in denying the motion. At the hearing on a motion for new trial, the trial court is the trier of fact and the sole judge of the witnesses' credibility. Woodall v. State, 77 S.W.3d 388, 393 (Tex. App.—Fort Worth 2002, pet. ref'd). After reviewing the record of testimony adduced at the hearing on the motion for new trial and the trial record, we cannot say the trial court abused its discretion in overruling the motion. Strickland's first point of error is overruled.
Inadequate Record To Find Trial Counsel Ineffective
Strickland next asserts that his trial counsel was constitutionally ineffective for failing to present testimony of the witnesses presented at the hearing on the motion for new trial. The standard for assessing such a claim is well established. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance of counsel, an appellant must, by a preponderance of the evidence, prove that (1) trial counsel's performance fell below an objective standard of reasonableness; and (2) counsel's deficient representation prejudiced the appellant's defense. Strickland, 466 U.S. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The appellant must show that the trial attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). In other words, the appellant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. If, however, "there is at least the possibility that the conduct could have been legitimate trial strategy," then the reviewing court must "defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003) (citing Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002)).
Further, ineffective assistance of counsel claims "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Although Strickland here brought evidence before the trial court in support of his motion for new trial, he did not secure testimony from his trial counsel. Such evidence is important, in a case such as this, to evaluate a trial attorney's strategy and motivation for doing things the way he or she did. We presume counsel had a valid strategy, and our review of the record reveals aggressive, pertinent cross-examinations of the State's witnesses. It must be noted though, that, after Strickland testified, the defense called McDonald, who had been at Strickland's house the day of the attack. Strickland testified that, after a long fight with Nicholson, he suffered injuries such as cuts to his hands and eyebrow. After the fight, Strickland went across the street to his house, McDonald accompanied him (according to Strickland), and tended to his wounds. This included treating him with peroxide and applying "Crazy Glue" to cuts on his hands and eyebrow. However, when McDonald took the stand, she denied administering such first aid, stating that Strickland had no blood on him and that his eyebrow looked fine.
We have nothing before us indicating the motivation for trial counsel's action or failure to call certain other witnesses. We do note that he told the trial court he did have other witnesses coming. As noted above, the testimony of McDonald contradicted that of Strickland. The record on direct appeal is not sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). After McDonald contradicted Strickland's account of his injuries and treatment of them, it is possible that trial counsel was wary of presenting other witnesses who might further contradict Strickland's testimony. Strickland has not overcome the presumption that his trial counsel had a reasonable strategy with which he defended his client. The threshold of Strickland has not been crossed, and we overrule this point of error.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: November 18, 2004
Date Decided: March 28, 2005
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