In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00118-CR
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MICHAEL GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 35549-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Michael Gonzales appeals his jury conviction on his plea of guilty to the offense of felony driving while intoxicated. The jury assessed punishment at three years' imprisonment.
On appeal, Gonzales complains that the trial court erred by allowing the State to make an impermissible jury argument.
A defendant's right not to be subjected to erroneous jury arguments is one of those rights that is forfeited by a failure to insist upon it. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). A defendant who fails to object to a jury argument or who, after an objection to improper jury argument, fails to pursue his objection to an adverse ruling, forfeits his right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
In this case, no objection was made during the State's closing argument to the jury. Therefore, this point of error is waived. See id. at 89; Marin, 851 S.W.2d at 279.
Even if not waived, the complained-of statements (1) made by the State fall within the four permissible areas of jury argument: (1) summation of the evidence presented at trial; (2) reasonable deduction from that evidence; (3) answer to the opposing counsel's argument; or (4) a plea for law enforcement. See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). We find no error in the State's jury argument.
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: April 25, 2008
Date Decided: May 1, 2008
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1. These statements include: "What I'm saying is, he cannot control himself." "But when somebody, whether they're a bad individual or not, cannot control themselves, . . . they need somebody, you, to control them." "You are Gregg County. This is your home. This is where we live. This is where our loved ones are. And when an individual cannot control themselves, can't take responsibility like a grown-up should for their own actions, whether they like them or not, you have a responsibility to do something for him, to make him take a time-out for a little while, and maybe that will get his attention, because probation hasn't worked, county jail time hasn't worked. Well, what have we not tried?" and "He doesn't even think he has a drinking problem. That is the most-the scariest thing I heard this morning come out of this mouth. An individual who has three DWIs has got a drinking problem. There's no doubt about it. And when they don't realize it, that's what's kind of scary."
amily: 'Times New Roman', serif">Trial Court No. 04M0567-CCL
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Michael Melvin Smith appeals his conviction for assault. Following a jury trial, the jury found Smith guilty of assault causing bodily injury. The trial court assessed punishment at 365 days' imprisonment, but suspended the sentence and placed Smith on community supervision for two years. Smith's sole issue on appeal is that he received ineffective assistance of counsel. We affirm the judgment of the trial court.
Smith and Terri Queen, who was Smith's girlfriend at the time of the offense, had gotten into an argument while eating at an Outback Steakhouse. Queen left the restaurant and went to the Elks Lodge. While at the Lodge, Queen visited with R. C. McMillen, a friend of Smith. Smith testified that he attempted to locate Queen because she had taken a laptop computer he needed for work. Smith noticed Queen's vehicle at the Lodge and attempted to enter, but could not gain admittance because he was not a member. At the Lodge, both Queen and McMillen consumed alcohol. Because Queen felt she should not drive, McMillen transported Queen to the residence of a friend, Jo Alice Meunier, where she intended to spend the night. Shortly after Queen and McMillen arrived at Meunier's residence, Smith knocked on the front door and was admitted. An altercation developed between McMillen and Smith. The testimony conflicted concerning how the altercation developed. McMillen testified that Smith attacked him without provocation. Smith testified that McMillen attacked him first, and he was afraid McMillen would continue to assault him. McMillen was treated at the hospital for a "knocked out" tooth, head and facial lacerations, and other injuries.
Smith contends he received ineffective assistance of counsel because his trial counsel committed the following errors: 1) failing to file any motions for discovery, 2) allowing the introduction of hearsay without objection or proper foundation, 3) offering an affidavit of nonprosecution from a person other than the victim, 4) failing to discover, produce, and present evidence on behalf of Smith, 5) failing to adequately prepare for trial, 6) failing to fully inform Smith of his right to have the jury assess punishment, 7) allowing the State to refer to the altercation as an "assault" without objection, 8) signing a certification of Smith's right of appeal, which incorrectly specified that Smith did not have a right to appeal, and 9) requesting deferred adjudication after the jury returned a verdict.
Both the Sixth Amendment and the Texas Constitution confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836.
To satisfy the deficiency prong of the test, Smith must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Id. at 833. There is a strong presumption that counsel's performance was adequate. Id. The reason for this presumption is that counsel at trial is better positioned to judge matters of strategy than an appellate court reviewing a cold record. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Goodspeed v. State, No. PD-1882-03, 2005 Tex. Crim. App. LEXIS 520, at *5 (Tex. Crim. App. Apr. 6, 2005).
"If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002); see Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). This Court should not consider the wisdom of such a strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835.
Most of Smith's allegations could have been based on plausible trial strategies. Smith argues that his trial counsel's performance was deficient for failing to file any motions for discovery and for allowing the admission of hearsay. Defense counsel did not object to the admission into evidence of medical records, dental records, and an estimate of damages. Smith contends these records lacked the required business records affidavit and there was no showing that the medical expenses were reasonable and necessary. In addition, Smith argues trial counsel erred in objecting to the State asking Officer Randy McAdams if the victim was intoxicated. After the trial court overruled the objection, McAdams testified that, in his opinion, McMillen and Queen were both intoxicated that evening. Smith also alleges that his trial counsel should have moved for a motion for a directed verdict after the State rested. Smith alleges that the fact his trial counsel introduced an affidavit for nonprosecution from Queen indicates his trial counsel did not adequately prepare. Queen was not the victim in the case. There is no explanation in the record for these actions, and there are plausible trial strategies for all of these actions. Counsel may have concluded the medical records showed McMillen had less severe injuries than he claimed. Likewise, counsel may have reasoned that introduction of the nonprosecution affidavit gave some credence to Smith's version of the events. Since we have no information as to why these actions were taken and because there are plausible trial strategies for these actions, defense counsel's conduct was not so outrageous that no competent trial attorney would have engaged in it. These alleged errors do not show that trial counsel's performance was deficient.
Smith also alleges that his trial counsel was ineffective for failing to ask Smith, when he was on the witness stand, whether he acted in self-defense and for failing to discover, produce, and present evidence on behalf of Smith. Smith did present evidence that raised the issue of self-defense at trial. Smith testified that McMillen attacked him first and that he was afraid McMillen would continue to assault him. Smith also testified he did not feel he would be able to leave safely. The jury was instructed concerning self-defense. We note that the failure to call witnesses may be ineffective assistance of counsel. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (failure to present available alibi witnesses deemed ineffective assistance of counsel). However, such witnesses must be shown to be available and to actually benefit the defense. Id.; Bates v. State, 88 S.W.3d 724, 728 (Tex. App.—Tyler 2002, pet. ref'd); Simms v. State, 848 S.W.2d 754, 758 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). Smith has not shown that witnesses were available and would have benefitted the defense.
Smith complains that counsel failed to object to the State referring to the altercation as an assault. It is undisputed that Smith and McMillen engaged in a fight. The issue before the jury was which party instituted that fight. Counsel was not deficient in failing to object to the term "assault" in these circumstances.
Smith cites Gilbert v. State, No. 06-03-00258-CR, 2004 Tex. App. LEXIS 5055 (Tex. App.—Texarkana June 9, 2004, pet. ref'd) (not designated for publication) for the proposition that counsel must adequately prepare for trial. Gilbert is distinguishable from this case because, in that case, the defendant's trial counsel prepared for the wrong offense and testified at the hearing on the motion for new trial that he had not been aware of the possible alibi before the day of the hearing. Id. at *8. Smith argues that his counsel did nothing to prepare for trial, as evidenced by the failure to file any motions for discovery. Ineffective assistance claims cannot be based on "retrospective speculation"; they must be firmly rooted in the record. Bone, 77 S.W.3d at 835. The mere fact that no discovery motions were filed does not indicate that no preparation was performed. The record does not show that Smith's trial counsel was not prepared for trial.
Smith also alleges his trial counsel failed to fully inform Smith of his right to have the jury assess punishment. Likewise, the record does not show that Smith's trial counsel failed to inform his client of his right to have the jury assess punishment. Although Smith's trial counsel did request a moment to speak with his client, the record does not indicate whether a consultation took place. Smith's counsel informed the trial court that, "I think he'd like to forego the jury punishment thing and just let the Court determine the punishment." The record does not indicate that Smith's trial counsel had not discussed the right to have the jury assess punishment with Smith. Smith's claims that trial counsel did not adequately prepare for trial or fully inform Smith of his right to have the jury assess punishment are not established in the record.
Smith alleges his trial counsel was deficient for requesting deferred adjudication after the jury had returned a verdict and for signing a certification of Smith's right to appeal, which stated Smith did not have a right to appeal. After the jury returned the verdict, Smith's trial counsel requested deferred adjudication. While Smith was not eligible for deferred adjudication because he had pled not guilty and the jury had already reached a verdict, counsel's action in requesting more relief than that to which Smith was entitled is not deficient performance. Defense counsel also signed a certification of Smith's right of appeal, which stated that this was "a plea-bargain case, and the defendant has NO right of appeal." While trial counsel did err in signing this form, the error was corrected. On January 5, 2004, a supplemental record was filed containing a certification signed by the trial court which indicated Smith did have a right to appeal. Smith's appellate rights have not been compromised.
Smith alleges his trial counsel erred in allowing the trial court to enter judgment requiring restitution, but not specifying the amount of the restitution. In addition, the judgment ordered restitution to be paid to Meunier even though Smith was not charged for or convicted of criminal mischief against Meunier in this case. It is true that the amount of the restitution payable to a third-party victim should have been adjudicated by the court. Campbell v. State, 5 S.W.3d 693, 699 (Tex. Crim. App. 1999 ). However, nothing in the record shows that the amount of the restitution was erroneous or that the result would have been different if it had been pronounced in open court. The constitutional right to counsel does not mean errorless counsel. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Ineffective assistance of counsel claims must be based on the totality of the circumstances. Strickland, 466 U.S. at 698; Welborn, 785 S.W.2d at 393. Under the totality of the circumstances, we cannot conclude the record indicates that Smith's trial counsel's performance was deficient. Under the totality of the circumstances, Smith received effective assistance of counsel.
Further, Smith has failed to satisfy the second prong of Strickland. A defendant does not meet his or her burden by merely showing that an error had some conceivable effect on the outcome of the trial. Strickland, 466 U.S. at 693. The defendant must show a "reasonable probability" that, but for the error, the result of the trial would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. Smith has not demonstrated that the probability of a different result is sufficient to undermine confidence in the outcome.
Because Smith has failed to show that his trial counsel rendered deficient performance and has failed to show a reasonable probability of a different result, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: July 12, 2005
Date Decided: August 3, 2005
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