Affirmed and Opinion filed May 30, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-00757-CR
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SHENUTY MAXIMUS ABRAHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 861,085
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O P I N I O N
Shenuty Maximus Abraham appeals a conviction for aggravated robbery[1] on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial court erred in failing to hold a hearing on appellant’s motion for new trial. We affirm.
Ineffective Assistance of Counsel
Appellant’s first and second issues argue that he was denied effective assistance of counsel, as guaranteed by the United States and Texas Constitutions[2] because, during the guilt phase of trial, his counsel asked him on direct examination if he participated in the aggravated robbery and also argued in closing that appellant was guilty of the crime charged.
To prevail on a claim of ineffective assistance of counsel, an appellant must show, first, that counsel’s performance was deficient, i.e., it fell below an objective standard of reasonableness, and, second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 121 S. Ct. 2196 (2002). To be sustained, an allegation of ineffective assistance must be affirmatively demonstrated in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
In reviewing ineffectiveness claims, scrutiny of counsel’s performance must be highly deferential. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689. Thus, the presumption that an attorney’s actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268-69 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 803 (2000).
In this case, appellant contends that his counsel’s following two questions on direct examination cannot be considered trial strategy:
Counsel: Now, you’re saying that you did participate in the robbery; is that correct?
Appellant: Somewhat, yes.
Counsel: But in fact, it was planned by two other people?
Appellant: Yes, sir.
He also claims that the following portion of his counsel’s closing argument could not be viewed as trial strategy:
Now, I don’t think you can – under the law of parties, I don’t think you can do anything but find Mr. Abraham guilty. Okay? . . . I wouldn’t have any problem with you finding him guilty, because I think, under the law of parties, he’s admitted that.
However, by not developing a record reflecting counsel’s reasons for eliciting this testimony and making this statement to the jury, appellant has failed to overcome the presumption that his counsel’s decisions to proceed in this manner were sound trial strategy. In light of the State’s evidence, including the complainant’s positive identification of appellant, and his palm print and fingerprints being recovered from the crime scene, appellant’s counsel might have believed that a strategy of acknowledging and minimizing, rather than denying, appellant’s involvement in the robbery would produce the most favorable outcome ultimately. Therefore, we overrule appellant’s first and second issues.
Motion for New Trial
Appellant’s third issue contends that the trial court erred in denying him an evidentiary hearing on his motion for new trial (the “motion”) in that the motion was timely presented, alleged facts outside the record that, if true, could have entitled him to relief, and was supported by an affidavit.[3]
Preservation of Complaint
Ordinarily, to preserve a complaint for appellate review, a party must make a request, objection, or motion to the trial court, stating the specific grounds for the ruling sought, and obtain a ruling. Tex. R. App. P. 33.1. At a hearing on a motion for new trial, the trial court may receive evidence by affidavit or otherwise. Id. 21.7. Therefore, when a defendant presents a motion for new trial supported by affidavit(s), the defendant may choose whether to rely on the affidavit(s) as his evidence or to offer further testimonial evidence. As with other tactical decisions regarding the type and amount of evidence to offer, this choice is to be made by the defendant and his counsel, not the trial court. Moreover, rule 33.1 would indicate that a desire to offer testimony in support of a motion for new trial must be communicated to the trial court and ruled upon in order to be preserved for review on appeal.[4] Because our record does not reflect that appellant requested a hearing at which testimony would be offered and obtained a ruling on that request,[5] we do not believe his complaint of being denied such a hearing has been preserved for our review. However, because the Texas Court of Criminal Appeals has not addressed this issue, we will also review this challenge on the merits as an alternative ground for overruling it.
Sufficiency of Motion and Affidavit
When a defendant presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial court abuses its discretion if it fails to hold a hearing on the motion. Martinez v. State, No. 2124-00, 2002 WL 662532, at *2 (Tex. Crim. App. April 24, 2002). However, in order to obtain a hearing, the motion must be supported by an affidavit specifically showing the truth of the grounds for attack. Id. The affidavit need not reflect every component legally required to establish relief, but merely that reasonable grounds exist for holding that a new trial could be granted. Id.[6] The purpose of the hearing is to then fully develop the issues raised in the motion. Id.
In this case, appellant’s motion asserted that his trial counsel’s performance was deficient in failing to: (1) subpoena cellular telephone records which would have contradicted the testimony of the complainant that she had no previous relationship with appellant; (2) interview potential alibi witnesses; (3) present an alibi defense at trial; and (4) object to the State’s closing argument during the punishment phase of trial. The attached affidavit of appellant’s trial counsel (the “affidavit”) states that: (1) before trial, appellant told counsel that he was with two individuals in Galveston when the robbery occurred, and appellant gave counsel the names and telephone numbers for those individuals, but counsel did not interview them before trial or pursue an alibi defense for appellant; (2) before trial, appellant told counsel that appellant’s cellular phone records would have contradicted the complaining witness’s testimony that she had no prior relationship with appellant, but counsel did not examine or subpoena those records because he was uncertain of their relevance; and (3) counsel failed to object to the State’s statement during closing argument in the punishment phase that appellant had six prior convictions, which was outside the record and incorrect in that appellant had only two felony convictions, successfully completed probation for both, and never went to the penitentiary.
As to the failure to subpoena the telephone records, the affidavit shows that counsel consciously refrained from pursuing this evidence because he was uncertain of its relevance. Because this was a matter of trial strategy, it would generally not establish ineffective assistance, and the motion and affidavit did not provide a reasonable basis to conclude otherwise. Similarly, a reasonable basis to conclude that the failure to interview the alibi witnesses and pursue an alibi defense would have demonstrated ineffective assistance was not shown because there was no evidence of what the witnesses would have said or how an alibi defense could have been persuasive in light of the complainant’s positive identification of appellant and his palm print and fingerprints being recovered from the crime scene.[7]
With regard to counsel’s failure to object to closing argument, the trial court record contains evidence of appellant’s prior convictions. Therefore, the trial court could assess from the record whether the State’s closing argument went outside the record, and the matter was therefore not one that was not determinable from the record. Because appellant’s third point of error thus fails to demonstrate that the trial court erred in failing to conduct a hearing on the motion, it is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Opinion filed May 30, 2002.
Panel consists of Justices Hudson, Fowler, and Edelman.
Do not publish — Tex. R. App. P. 47.3(b).
[1] A jury found appellant guilty and assessed punishment of twenty years confinement and a $10,000 fine.
[2] Because the Texas Constitution affords no greater right to effective assistance of counsel than the United States Constitution, we will address appellant’s first and second issues together. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
[3] The State contends that the trial court was not required to hold a hearing on the motion because the affidavits supporting it were sworn before an attorney representing appellant. See, e.g., Garza v. State, 630 S.W.2d 272, 273 (Tex. Crim. App. 1981) (holding that juror affidavits sworn before one of appellant’s attorneys could not be considered, unlike affidavit sworn before a notary public other than one of appellant’s attorneys). Although the name of the notary appearing on the affidavits supporting the motion also appears in appellant’s brief as one of the attorneys representing him, that name does not appear as an attorney for appellant on the motion for new trial. Therefore, the record does not reflect that the notary was an attorney representing appellant at the time the affidavits were sworn.
[4] See Edwards v. State, 37 S.W.3d 511, 514 (Tex. App.—Texarkana 2001, pet. ref’d); Brooks v. State, 894 S.W.2d 843, 847 (Tex. App.—Tyler 1995, no pet.); Martin v. State, 823 S.W.2d 395 (Tex. App.—Texarkana 1992, pet. ref’d).
[5] The trial court’s docket sheet reflects presentment of appellant’s motion for new trial but not a request for an evidentiary hearing on the motion.
[6] Compare Martinez, 2002 WL 662532 at *2 (holding sufficient an affidavit stating that counsel failed to inform the defendant of a plea offer), and Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (same), with King v. State, 29 S.W.3d 556, 568-69 (Tex. Crim. App. 2000) (holding that assertions in verified motion for new trial failed to establish facts entitling appellant to a new trial in that they: (1) provided no support for allegation that appellant’s conviction was contrary to law; (2) failed to explain who threatened a prospective defense witness, what the witness’s testimony would have been, or how it would have been material; (3) failed to explain what right appellant had to pass notes to other inmates or what information was intercepted that denied him defensive information; (4) did not establish a claim that the State exerted an improper influence on the jury merely because jury was fond of bailiff; and (5) did not allege what further investigation counsel should have conducted, who appellant’s alleged alibi witness was, or how an alibi witness could have been persuasive given the physical evidence and appellant’s own statements connecting him with the crime), and Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (holding that affidavit was insufficient for failing to state how counsel’s investigation was deficient, what further investigation would have revealed, or what unsubpoenaed witnesses would have said to exculpate him (but not addressing appellant’s claim that counsel had failed to inform him of potential range of punishment in considering plea offer)).
[7] See King, 29 S.W.3d at 568-69; Jordan, 883 S.W.2d at 665.