In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00080-CR
______________________________
RICHARD ODELL MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 22,837
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
A jury found Richard Odell Martin guilty of two counts of injury to a child by sexual contact and one count of sexual assault of a child. (1) The jury assessed Martin's punishment at ten years' imprisonment for the indecency charges and twenty years' imprisonment for the sexual assault charge. Martin now appeals, raising four claims of ineffective assistance of counsel. We overrule each claim and affirm the trial court's judgment.
I. Standard of Review
The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, an appellant must first prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. 668; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove 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). Under this standard, a claimant must demonstrate that 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.
Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689; Tong, 25 S.W.3d at 712. This Court will not employ the benefit of hindsight to second-guess the strategy of trial counsel, nor will the fact that a different attorney might have pursued a different course support a finding of ineffectiveness. See Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). The fact that another attorney (including appellant's counsel on appeal) might have pursued a different tack in defending a case will not support a finding of ineffectiveness. See Harner v. State, 997 S.W.2d 695, 704 (Tex. App.--Texarkana 1999, no pet.). 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).
When ineffective assistance is raised on direct appeal, appellate counsel and the reviewing court must proceed on a trial record not developed for the object of litigating or preserving the claim--and thus the record is often incomplete or inadequate for this purpose. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003).
II. Martin's Claims
Martin asserts his trial counsel was ineffective for four reasons: First, his trial counsel did not present a jury argument during the punishment stage of the proceedings. Second, his trial counsel did not object to the admission of a videotape showing Martin taking a polygraph examination. Third, his trial counsel did not object to the admission of a videotape in which Martin is seen attached to a polygraph machine. And fourth, Martin's trial counsel did not call a community supervision officer to testify during the punishment phase about the terms, conditions, and programs available if Martin were placed on community supervision.
A. No Closing Argument
It is the custom in Texas during the punishment phase of a criminal trial to permit the State to make an opening summation, followed by the accused's punishment argument, then a rebuttal from the State. See generally Tex. Code Crim. Proc. Ann. arts. 36.07, 36.08 (Vernon 1981). In this case, after both sides had rested and the trial court had read its punishment charge to the jury, the State gave a brief opening summation regarding punishment that comprises three pages of the appellate record. Martin's trial counsel thereafter waived his right to present a closing argument. Because Martin's counsel presented no argument, the State did not have the right to present any rebuttal. Martin asserts that it is this waiver of a summation on punishment which constitutes ineffective assistance.
"It is the trial strategy of some attorneys to waive final argument in an attempt to cut off the State's rebuttal. There is a strong presumption that this strategy was an exercise of reasonable professional judgment." Salinas v. State, 773 S.W.3d 779, 783 (Tex. App.--San Antonio 1989, pet. ref'd). Trial counsel's waiver of final argument in the case now on appeal could have been a tactical decision to prevent the State from making a much longer rebuttal argument. We cannot say such a decision is outside the wide range of professional norms. No ineffective assistance has been shown.
B. The Videotape
In his second and third issues, Martin asserts his counsel provided ineffective assistance by failing to object to the admission of a videotape showing him attached to a polygraph machine. This videotape also shows Martin being asked what he thought should happen to someone who sexually assaulted a minor, to which Martin responded that such a person should be "severely punished . . . probably the maximum." Martin's brief on appeal makes no effort to demonstrate that this videotape was inadmissible under the Rules of Evidence or that (if admissible) the videotape's probative value was nonetheless substantially outweighed by its prejudicial impact (thereby precluding its admission under Tex. R. Evid. 403). Nor does Martin's appellate brief attempt to demonstrate that, but for the admission of this videotape, the outcome of Martin's trial would have been different. As such, Martin has demonstrated neither that counsel provided deficient performance on either of these alleged bases, nor that counsel's alleged errors prejudiced Martin's defense, as required under Strickland. As such, these claims have been inadequately briefed. Accord Peake v. State, 133 S.W.3d 332, 334 (Tex. App.--Amarillo 2004, no pet.).
C. Failure to Call a Community Supervision Officer to Testify About Community Supervision
Finally, Martin claims trial counsel provided constitutionally deficient assistance because he failed to call a community supervision officer to testify regarding the possible terms and conditions of community supervision. Martin contends such testimony might have resulted in the jury giving a lesser punishment. Martin's appellate brief makes no effort to demonstrate how testimony from an employee of the local community supervision and corrections department would have aided his case, nor has Martin made any effort to demonstrate how the absence of such testimony made the State's case for punishment more persuasive. At best, Martin's argument is speculative, rather than being firmly rooted in the record, as required. See, e.g., Ex parte Gray, 126 S.W.3d 565, 568-69 (Tex. App.--Texarkana 2003, pet. dism'd, untimely filed); Hernandez v. State, 84 S.W.3d 26, 35 (Tex. App.--Texarkana 2002, pet. ref'd). As such, this issue has also been inadequately briefed. See Gray, 126 S.W.3d at 568-69.
III. Conclusion
For the reasons stated, we overrule each claim of ineffective assistance of counsel and affirm the trial court's judgment.
Bailey C. Moseley
Justice
Date Submitted: November 13, 2006
Date Decided: January 9, 2007
Do Not Publish
1. The jury also found Martin not guilty of another charge of sexual assault.
on pleadings that included Milacron Inc. in the style of the case, failed to answer amended petitions containing both Milacron Marketing Company and Milacron Inc., prepared a special appearance and affidavit immediately prior to or at trial, and decided to spring the special appearance upon the court and the parties at the last minute. Although this could be attributed to error on the part of the defendants, it smacks more of procedural gamesmanship, conduct we cannot condone.
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: August 13, 2008
Date Decided: August 27, 2008
1. For the first time on appeal, Milacron Inc. argues that Performance brought suit against "Milacron, Inc., an entity that does not exist" (pointing out that the true name of the corporation does not contain a comma). Since no special exception was filed to point out to the trial court the existence of the superfluous comma, we reject Milacron Inc.'s argument that suit was improperly brought against it.
2. The burden was on Milacron Inc. to present a sufficiently complete record that clearly demonstrated the error of which it complained. Since Milacron Inc. did not request a reporter's record and the Court only has a partial record before it (the portion filed by Performance), every reasonable presumption will be indulged in favor of the trial court's ruling. See Tex. R. App. P. 38(h); Arredondo v. Rodriguez, 198 S.W.3d 236, 239 (Tex. App.--San Antonio 2006, no pet.); Cooper v. Bowser, 610 S.W.2d 825, 828 (Tex. Civ. App.--Tyler 1980, no writ); Meyer v. Worden, 530 S.W.2d 904, 906 (Tex. Civ. App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.); Coleman v. Pac. Employers Ins. Co., 484 S.W.2d 449, 454 (Tex. Civ. App.--Tyler 1972, writ ref'd n.r.e.) (op. on reh'g); Wright v. Mack Motor Truck Corp., 336 S.W.2d 831, 833 (Tex. Civ. App.--Houston 1960, no writ).