In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-521 CR
____________________
FARAN YUSAFI, Appellant
V.
THE STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 04-07-05410-CR
MEMORANDUM OPINION
A jury found Faran Yusafi guilty of possession of child pornography. See Tex. Pen. Code Ann. § 43.26 (Vernon 2003). Yusafi contends his trial counsel rendered ineffective assistance.
The issue presented is whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and rendered the result of the proceeding unreliable. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Appellate review of defense counsel's performance is highly deferential. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption 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 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)); see also Bone, 77 S.W.3d at 833. Trial counsel's ineffective assistance of counsel must be "firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The Court of Criminal Appeals has noted that "in the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland." Thompson, 9 S.W.3d at 816 n.6.
Appellant argues his trial counsel was ineffective because he failed to obtain expert witnesses; failed to investigate and interview witnesses and determine their testimony fully; failed to challenge for cause or object to a specific juror; failed to object to the admission of evidence when the evidence was not properly authenticated, identified, and related to the appellant; failed to properly object and preserve any error in the State's jury argument; agreed to stipulate to the State's identification of appellant; and made no motion for directed verdict based on the State's failure to identify appellant as the person responsible for the alleged offense.
Moh Yusafi, appellant's ex-wife, testified she and appellant married in 2001. Appellant was a computer programmer with the Texas Department of Criminal Justice. Appellant and his wife lived with appellant's mother. He had his own room where he kept his computer. Moh entered appellant's room and saw a picture of a nude girl. Appellant claimed an internet source sent the picture. According to Moh, appellant subsequently began locking the door to the room when he was inside.
Approximately a year after this incident, Moh became suspicious of appellant's behavior and entered appellant's room after he left the house. The computer screen was black. She touched the keyboard and the words on the screen led Moh to believe appellant had been looking at pornography. Moh confronted appellant. Appellant said he received "these things" and they "just showed up" on his computer.
Moh eventually left appellant. One week after leaving appellant, Moh returned to the house and retrieved personal belongings and two of appellant's computers. She asked her nephew to see what was on the computer. The computer's password protection prevented her nephew from accessing the computer's files.
Moh reported appellant to the TDCJ. Lieutenant Russell Weaver asked Nathan Ward, an investigator with the TDCJ Inspector General's Office, to call Moh. Moh told Ward about the incidents. When his lieutenant took possession of appellant's computers, Ward was assigned to investigate the case. Moh testified she had the computers two days before turning them over to the Inspector General's Office.
Ward interviewed appellant. Appellant denied child pornography was on the computers. Ward obtained appellant's written consent to search the computers. A computer forensics expert and special agent with the United States Secret Service searched the hard drives. The agent found child pornography on both hard drives, and the date and time stamps show the files were created in 1999, 2001, 2002, and 2003. The trial court admitted in evidence a disk with approximately 9600 pictures downloaded from the computers, and also admitted as exhibits several of the pictures. The jury found appellant guilty of possession of child pornography.
Appellant complains his counsel failed to call any fact or expert witness to further his theory that Moh "planted" the images on the computers. "A claim of ineffective assistance of counsel based on counsel's failure to call witnesses fails in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony." Wade v. State, 164 S.W.3d 788, 796 (Tex. App.--Houston [14th Dist.] 2005, no pet.); see also Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Without any showing that any fact or expert witness was available to testify and that the testimony would benefit the defendant's case, a reviewing court must presume defense counsel exercised his reasonable professional judgment in deciding not to call witnesses. Wade, 164 S.W.3d at 796. Appellant fails to demonstrate which fact or expert witnesses were available for trial or how their testimony would benefit his case. As for appellant's argument that an expert witness was necessary to promote the theory that Moh could have planted the images on the computer during the time the computers were in her possession, defense counsel successfully elicited from the special agent the fact that the date stamp for each image file could be modified. Counsel may have concluded cross-examination of an opposing witness would possibly be more effective than calling an expert witness, and in this undeveloped record on direct appeal there is nothing to establish that judgment was unreasonable. That another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992). On this record, defense counsel's approach has not been shown to be ineffective assistance of counsel.
Appellant maintains defense counsel's cross-examination of the State's witnesses failed to elicit information useful to his theory of the case. Defense counsel obtained testimony during his cross-examination of Moh as to the length of time she possessed the computers. He elicited testimony regarding her anger towards appellant. As noted above, during defense counsel's cross-examination of the the special agent, the agent conceded the date and time stamp for each image file could be modified. Appellant's claim of ineffective assistance with respect to cross-examination is not "firmly founded in the record." See Thompson, 9 S.W.3d at 813.
Appellant argues defense counsel failed to challenge juror #30 for cause and did not object to the judge's inclusion of the juror in the panel from which defense counsel made his peremptory strikes. Appellant contends juror #30 was a vacillating juror who provided different answers to the same question during voir dire.
We first consider whether the inclusion of juror #30 on the jury panel over defense counsel's objection, had he objected, would have been error. Counsel does not render ineffective assistance of counsel by failing to object if there is no error. Johnson v. State, 691 S.W.2d 619, 626 (Tex. Crim. App. 1984). In the case of a vacillating venire member, an appellate court generally defers to the trial court's decision because the trial court is in the best position to see and hear the venire member during voir dire. Granados v. State, 85 S.W.3d 217, 232-33 (Tex. Crim. App. 2002). The trial court's ruling generally will not be disturbed unless there is no adequate basis in the record to support the ruling. Vuong v. State, 830 S.W.2d 929, 944 (Tex. Crim. App. 1992). Factors such as demeanor and tone of voice are important in conveying the precise message intended by the venire member. Mooney v. State, 817 S.W.2d 693, 701 (Tex. Crim. App. 1991).
Defense counsel asked during voir dire which venire members could not consider the full range of punishment. Juror #30 initially raised her hand. The trial court allowed other venire members to take a break while the defense and State could continue with follow-up questioning of some of the venire members, including juror #30. The defense questioned juror #30 specifically as to whether she would be able to consider the full range of punishment:
[Defense Counsel]: All right. We need to get an answer though. Would you be able [to] consider the full range of punishment?
[Juror #30]: Sure.
[Defense Counsel]: You could?
[The Court]: Could. Okay. Good. So you get a break just like everyone else.
Even if an objection had been made to the trial court's decision not to strike juror #30 for cause, that objection would not have been supported by this record. Counsel's failure to object to a correct ruling is not ineffective assistance of counsel.
Appellant argues that after the trial court sustained defense counsel's objection to the State's jury argument regarding the time it would take to download each image found on the computers by someone doing this without appellant's knowledge and consent, defense counsel should have asked for an instruction to disregard the argument or ask for a mistrial. He further argues defense counsel should have sought the trial court's permission to further argue for the court to sustain an overruled objection and should have moved to pursue his objection outside the jury's presence.
Defense counsel's sustained objection was in response to the State's argument that it would take thirty seconds to download and change the date and time stamp for each file and that would be "best case scenario." Defense counsel made the following objection to the argument: "Misleading. Misstatement of the evidence." The trial court sustained the objection. Counsel for the State reworded her summation of the evidence. Defense counsel objected again on the same basis, and the trial court overruled that objection. Appellant has failed to show the trial court's rulings were erroneous or that the argument required additional correction or an instruction to disregard. Appellant has also failed to show entitlement to a mistrial. This undeveloped direct appeal record does not establish counsel was ineffective as to these objections.
Last, appellant asserts that by stipulating to appellant's identity, defense counsel possibly waived an error or a series of errors on the part of the State in failing to have appellant identified in open court as the owner of the computers (State's Exhibits 2 and 3), as the person named in the indictment, or as the person who signed the consent to search (State's Exhibit 1). Appellant argues defense counsel's stipulation conceded an element of the case on which the State had the burden of proof. In a separate but related issue, appellant also asserts defense counsel should have objected to the admission of the written consent to search form because no one identified the "person sitting in court" as the person who signed the form. He argues defense counsel failed to object to the lack of proper identification of appellant by the State. Appellant contends counsel should have objected to the admission of the computers on the basis that these exhibits were not the same computers that had been tendered to the Inspector General's Office.
The defense theory at trial was that appellant was "framed" by his ex-wife. Conceding appellant owned the computers admitted as State's Exhibits 2 and 3 was not inconsistent with that theory, nor was the fact that appellant was the person who signed the consent to search form, or that appellant was the person named in the indictment. The record does not reflect the reasons for the stipulation. An appellate court generally should not second-guess defense counsel's strategy. See Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986)(citing Strickland, 466 U.S. at 690-91); Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). On this record on direct appeal, without more, we cannot say counsel was necessarily ineffective in stipulating to appellant's identity, or that the result at trial would have been different without the stipulation.
The record does not establish trial counsel's representation "fell below an objective standard of reasonableness" or that, but for the alleged errors, the result of the proceeding would have been different. Appellant's sole issue is overruled. The judgment is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on August 21, 2006
Opinion Delivered October 11, 2006
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, J.J.