Affirmed and Opinion filed April 20, 2006.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00184-CR
____________
HUGO STEVE RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 993,401
O P I N I O N
Appellant Hugo Steve Ramirez appeals after a jury found him guilty of assault on a public servant.[1] In his sole point of error, appellant alleges that he was denied effective assistance of counsel in violation of his state and federal rights. We affirm.
Factual Background
On July 6, 2004, three uniformed officersCOfficer Chad Cook, Officer Gary White, and Officer April Armstrong, all of the Pasadena Police DepartmentCwere dispatched to appellant=s house to investigate a reported domestic disturbance. Appellant=s next-door neighbor, Kirk Dillard, had called 911 after witnessing a fight between appellant and his wife, Lisa Coody. All three officers testified that when they arrived, they heard furniture falling inside the house, a person being slapped or struck, and Coody screaming for help. The officers also heard appellant threatening to kill Coody.
Cook testified that he announced APasadena Police@ and the officers drew their weapons. As Cook stepped forward into appellant=s open front doorway, the door bounced back forcefully and hit him. After stepping around the door, Cook saw appellant inside the house. Cook testified that appellant attempted to punch him, but that he dodged the punch and pushed appellant to the floor. Cook further testified that as he was reholstering his gun, appellant struck him, knocking his glasses off and scratching his face. According to Cook, appellant then ran down the hallway. Cook pursued appellant and quickly wrestled him into handcuffs. The testimony of White and Armstrong corroborated Cook=s account.
The officers described appellant=s behavior as Acrazy and wild,@ Aextremely violent,@ and Apumped up.@ Cook and White also testified that appellant was very sweaty, that his muscles were extremely rigid, and that he alternated between screaming and laughing after being arrested. Cook stated that appellant appeared to be under the influence of a substance that made him extremely angry, and White, a drug recognition expert, testified that appellant acted as if he had taken a stimulant.
Cook further testified that appellant repeatedly threatened to harm Cook=s family. According to Cook, appellant also stated that he often beat Coody and that she was afraid of him. Similarly, Armstrong testified that appellant threatened her and Cook when they attempted to remove his jewelry during the booking process. Armstrong also testified that appellant made various references to Voodoo.
Procedural Background
Appellant was charged with assault on a public servant. He retained Cedrick Muhammad, a criminal defense attorney, on September 28, 2004. On December 13, 2004, Muhammad received notice that appellant=s trial would begin on February 7, 2005. On January 25, 2005, Muhammad filed ADefendant=s Notice of Expert Witnesses,@ informing the State that he intended to call appellant=s psychiatrist, Dr. Gentil Salazar. On February 2, Muhammad filed a motion for continuance. In the motion, Muhammad alleged that appellant had Abecome impossible to communicate with@ and stated: AI believe my client is suffering from a chemical or mental imbalance at this time, and I=m not confident in his ability to assist me in the preparation or trial of his cases [sic] at this time.@ The trial court denied the motion the same day, and appellant=s trial began as scheduled on February 7.
Despite his prior notice to the State, Muhammad did not subpoena Dr. Salazar to appear on February 7. In fact, Muhammad did not issue any subpoenas until February 8, the second day of trial; at that time, Muhammad issued subpoenas for Dr. Salazar as well as Robert Barfield and Jeff Larson, who were appellant=s friends. However, these subpoenas apparently were never served, and the witnesses who testified on appellant=s behalf did so at appellant=s request.
Defense Evidence and Closing Argument at Guilt/Innocence Phase
Seven defense witnesses testified at the guilt/innocence phase.[2] Robert Barfield, a municipal judge and friend of appellant=s family, testified that he had never seen appellant behave violently, even under stress, and was surprised when he learned of the charges against appellant. Next, Coody testified that appellant=s behavior had never prompted her to call 911. Coody also testified that on the night in question, she had an anxiety attack, which caused her to black out at the front door; Coody stated that she probably received the scratches on her body when she fell. While she could not recall many details, Coody testified that she woke up in the master bedroom and saw several officers trying to subdue appellant in the living room. Coody also testified that appellant took Adderol.[3] Clay Kennedy, who had known appellant for twelve years and studied martial arts with him, testified that appellant was very skilled in martial arts and had great respect for authority. On cross-examination, despite the prosecutor=s statement that appellant had bitten a police officer while evading arrest in 1992, Kennedy testified that his opinion of appellant=s character had not changed. Appellant=s mother, Doris Ramirez, testified that appellant=s behavioral problems began when he was a year old, that appellant had seen many doctors over the years, including Dr. Salazar, and that appellant was currently under psychiatric care. Appellant=s mother also testified that she often bought appellant=s medicine and had recently purchased Adderol for appellant=s Attention Deficit Disorder (ADD). According to his mother, appellant behaved normally as long as he took his medication properly, but became hyper and agitated when he failed to do so.[4]
In his closing argument, Muhammad reasoned that Awith [appellant=s] size and martial arts training,@ both Coody and Cook would have been injured more seriously if appellant had truly intended to hurt them. He also commented that both Coody and appellant suffered from psychiatric disorders and blamed the incident on Aa lack of proper medication.@ Muhammad also emphasized various witnesses= testimony that appellant typically did not behave violently. The jury found appellant guilty of assault on a public servant.
Evidence and Arguments at Punishment Phase
At the punishment phase, Lieutenant Jack Fry of the Pasadena Police Department testified for the State. Fry had arrested appellant in 1992 for causing a disturbance in a fast food restaurant. According to Fry, when appellant learned that he was under arrest for disorderly conduct, he tried to escape. Fry testified that appellant swung at him and then jumped behind the wheel of his car; when Fry reached into the car to turn off the engine, appellant shifted the car into drive. According to Fry, appellant drove through the parking lot with Fry clinging to the side of the car. Fry also testified that appellant bit his arm, leaving a bruise. On cross-examination, Fry testified that while appellant originally had been charged with a felony, the charge ultimately was reduced to a misdemeanor for evading arrest.
The State also called Jacqueline Shea, the Office of Court Services employee who interviewed appellant shortly after his arrest in July 2004. Shea testified that appellant Ahad a chip on his shoulder@ and was Avery cocky.@ According to Shea, appellant did not mention that he took medication or had any medical problems; however, appellant informed Shea that he was taking anabolic steroids. On cross-examination, Shea testified that appellant was agitated and unfocused on her questions, even though the interview lasted only fifteen minutes. Shea also testified that appellant seemed normal.
Three witnesses testified on appellant=s behalf at the punishment phase. First, appellant=s mother testified that appellant had begun to exhibit problems at the age of six months and that he was a hyper and nervous baby. Appellant=s mother also testified that appellant had attended a special high school run by psychiatrists and had spent six months in a mental hospital. Furthermore, appellant=s mother testified that appellant had been in psychiatric care all his life and had always needed medication for his ADD; however, she stated that appellant Afunction[s] very, very well@ when he takes his medication. Appellant=s mother testified that if the judge sentenced her son to probation, she would remind him to take his medication properly. Finally, appellant=s mother characterized her son as a Avery productive citizen@ who Aworks like crazy@ and helps disadvantaged people.
Tobie Lee Miles, appellant=s former girlfriend, testified that appellant was a Astand-up guy@ who always treated her very well and A[did] more than any normal guy would for you.@ Miles also stated that appellant had never hit her. Finally, Miles testified that she and appellant were contemplating a future together and that she would help oversee his medication.[5]
Finally, Kennedy, appellant=s long-time friend, testified that he would oversee appellant=s medication and help him complete his probation successfully. Kennedy also believed that appellant would be supported by a strong family structure. Kennedy testified that appellant was not a danger to society, that he functioned normally when taking his medication properly, and that he helped people financially. On cross-examination, Kennedy conceded that a Agood guy@ respects authority and does not beat women or mislead them romantically. Kennedy also agreed that generally speaking, people are more likely to do bad things when those who care about them are not present. Kennedy also testified that appellant had obtained a prescription for steroids from his doctor. On redirect examination, Kennedy testified that appellant was a responsible person who liked to help people.
In his closing argument, Muhammad mentioned that appellant was taking several medications for Ahis mental illness.@ Muhammad further argued: AIf a person is on medication and on [sic] psychiatric care all of his life, there=s something wrong. When he=s not medicated properly, he has a reaction. But you have a host of people who are willing to make sure he takes the proper medication at the proper time.@ Consequently, Muhammad asked the jury to assess a punishment of probation.
In his closing argument, the prosecutor expressed concern that the jury Amight have been bamboozled a little bit about this mental illness thing@ and argued that Athere was absolutely no evidence that [appellant] ingested any stuff in the guilt/innocence phase of this trial.@ The prosecutor characterized Coody=s testimony as a Aweak assertion that [appellant] may not have been taking Adderol, which is for attention deficit, hyperactivity disorder@ and emphasized the absence of testimony from a psychiatrist, pharmacist, or other medical expert. The prosecutor further asserted that no expert testified because the opinion would have been disfavorable to appellant; he also argued that appellant=s alleged psychological problem had not prevented him from running a successful business. Finally, the prosecutor argued that appellant behaved disrespectfully toward women and police officers, and he requested that the jury assess a punishment of at least four years= confinement in the penitentiary. The jury assessed punishment at seven years= probation and a $10,000 fine, and the judge sentenced appellant accordingly.
Motion for New Trial
On March 3, 2005, appellant filed a motion for new trial, alleging ineffective assistance of counsel. In his affidavit, appellant stated that Muhammad appeared to be disinterested and did not work diligently on his case; appellant also believed that Muhammad Awas not going to be adequately prepared when the case had to the [sic] tried.@ Appellant also stated that in December 2004, roughly two months before trial, he had given Muhammad a list of nine witnesses who could testify on his behalf. According to appellant, these witnesses could testify about (1) medication he was taking at the time of the incident; (2) his character for non-violence and his respect for police officers; (3) his sparring and fighting capabilities; and (4) his history of non-violence in his relationships with women, including Coody. Appellant claimed that as of January 25, Muhammad had made no effort to contact any witnesses.[6]
Appellant further alleged that on January 27, 2005, he gave Muhammad a revised witness list, which included fourteen additional witnesses who could speak to the same issues as the original nine. According to appellant, Muhammad said that he would contact and subpoena the witnesses prior to trial. Appellant also stated that he gave Muhammad a copy of a letter from Dr. Salazar and informed Muhammad that the doctor could testify Aas to the medications that I was taking at the time of the incident that led to my arrest, and how those medications affected my perception and behavior during the incident.@ Appellant further claimed that when he went to Muhammad=s office on February 5, 2005, Muhammad seemed distracted and discussed appellant=s case for only thirty or forty-five minutes. According to appellant, Muhammad said not to worry about going to trial in two days because the case was going to be re-set again. Appellant stated that he was shocked when the trial commenced on February 7 and that he frantically telephoned witnesses because Muhammad had not subpoened anyone. According to appellant, Muhammad subpoened three witnesses on the second day of trial only after appellant confronted him. Appellant also alleged that although Muhammad knew that appellant wished to testify in his own defense, he prevented him from doing so. Finally, appellant stated that Muhammad produced no mitigating evidence at the punishment phase of trial.
The affidavits of Clay Kennedy and appellant=s parents corroborated appellant=s account. Kennedy stated that he had always expected to testify on appellant=s behalf but did not know the case was going to trial on February 7 until appellant telephoned him that day. Kennedy also stated that Muhammad did not discuss his testimony with him prior to calling him as a witness and asserted that Muhammad Adid not have a clue as to what I could testify to or what questions to ask me.@ Kennedy ultimately opined that Muhammad was Acompletely unprepared for trial . . . and did not have a clear idea of what to say on [appellant=s] behalf.@ Appellant=s father stated that his son had not expected to go to trial on February 7; he also testified that Muhammad never spoke to him before calling him to the witness stand and seemed Aconfused . . . about what he was trying to do with [appellant=s] case.@ Appellant=s mother stated that she first spoke with Muhammad in the hallway outside the courtroom on February 7 and that Muhammad Aseemed very unprepared for [appellant=s] trial.@ All three affiants stated that Muhammad and appellant had argued about Muhammad=s reluctance to issue various subpoenas.
Finally, appellant=s motion for new trial also included a letter from Dr. Salazar, dated January 26, 2005. In the letter, Dr. Salazar stated that he had been treating appellant for Attention Deficit and Hyperactivity Disorder (ADHD) since appellant was six years old and that appellant had been Adoing quite well as a person.@ Dr. Salazar asserted that on July 4, appellant uncharacteristically consumed alcohol while he was taking Dexedrine and explained that this combination can lead to erratic and even psychotic behavior. According to Salazar, the combination of Dexedrine and alcohol caused appellant=s aggressive behavior on July 6.
Hearing on Motion for New Trial
On May 5, 2005, the trial court held a hearing on appellant=s motion for new trial. Dr. Salazar testified that he was appellant=s psychiatrist and had known him since birth. Dr. Salazar stated that he had prescribed Dexedrine, a stimulant, to appellant, and that appellant had been taking it for many years. Dr. Salazar also confirmed that he had written a letter on appellant=s behalf and reiterated that the combination of Dexedrine and alcohol caused appellant=s unusual behavior, although he acknowledged that the Dexedrine label would contain warnings about alcohol consumption. Dr. Salazar also confirmed that he was not served with a subpoena until after the trial had begun and that he never spoke with Muhammad or an investigator about appellant. On cross-examination, Dr. Salazar stated that he was unaware that appellant had been charged with assault on a public servant in 1992 and assault involving a family member in 1997. He also testified that appellant never admitted to striking Officer Cook, hitting Coody, or threatening the other officers, and agreed that a proper diagnosis is not possible if a patient does not tell the entire truth.
Muhammad testified that he received notice about appellant=s trial date on December 13, 2004. He denied telling appellant on January 25 that the case would be postponed and stated that both he and appellant were prepared to go to trial on February 7. Muhammad also insisted that he filed the motion for continuance on February 2 because appellant had become impossible to communicate with and Muhammad was uncertain that appellant could assist him in preparing a defense.[7]
Muhammad also testified that appellant=s mother had faxed two witness lists, but that the first did not indicate the content of their potential testimony. Although Muhammad stated that he did not receive either list until after trial began, he asserted that he knew that the character witnesses would generally say positive things about appellant. Muhammad also testified that he did not believe the court would allow him to call so many character witnesses and that he was reluctant to call witnesses who would be subject to impeachment based on their knowledge of appellant=s prior assaults. Muhammad testified that before trial, appellant informed him that he had secured witnesses who could testify about his character for non-violence toward police officers, but he denied that appellant mentioned witnesses who could testify about his character for non-violence in general or his relationship with Coody. Muhammad also testified that he learned during the week of trial that Kennedy could testify about appellant=s physical capabilities and martial arts training.
Muhammad further testified that appellant said his girlfriend could testify about the medication appellant had taken on the night of the assault and its effects, and he denied that appellant mentioned Dr. Salazar as a potential witness regarding any substances appellant had taken that night. Although Muhammad acknowledged that he had received Dr. Salazar=s letter prior to trial and had designated Salazar as an expert witness on January 27, Muhammad stated that he had expected Dr. Salazar to testify about the Apossible mental state of [appellant] overall, not to what drugs he took that night, which he had no knowledge of.@ Muhammad stated that although he and appellant=s family telephoned Dr. Salazar, the psychiatrist would not return their phone calls. Muhammad acknowledged that he never spoke with Dr. Salazar or made arrangements to pay for his testimony.
Muhammad explained that he did not subpoena any witnesses before trial because appellant had assured him that he could secure the witnesses= attendance; furthermore, Muhammad was reluctant to subpoena cooperative witnesses because doing so provided notice to the state. Muhammad also testified that he reviewed the State=s file and did not contact Cook himself because in his experience, police officers are generally unwilling to discuss a pending case with defense counsel. He denied arguing with appellant about his failure to subpoena witnesses and stated that he issued the three subpoenas on February 8 because appellant had failed to secure the witnesses as promised. Muhammad stated that he learned during the week of trial that Kennedy could testify about appellant=s physical capabilities and martial arts training, and that he obtained sufficient information by speaking with defense witnesses in the hallway during trial.[8] He also testified that he had spoken with some witnesses over the telephone and had discussed the case with appellant and his parents before trial, although he could not remember everything he had done to prepare for appellant=s case.
According to Muhammad, appellant never expressed a desire to testify on his own behalf. Muhammad testified that he told appellant they would discuss the issue when the time came but that Aultimately I would make the decision.@ According to Muhammad, when he told appellant that he was not going to testify, appellant responded with silence, which Muhammad interpreted as Aratification.@ Muhammad testified that he initially planned to call appellant to the stand but later changed his mind. Muhammad explained that he had represented appellant in several prior criminal matters, including two assaults, and he believed that appellant had a prior conviction. Muhammad also testified that the facts suggested voluntary intoxication, which is not a defense to assault on a public servant. Muhammad did not remember telling the jury that appellant had not taken his medication and explained that his strategy evolved as the case unfolded.[9]
Prosecutor John Craig Still testified that while he disagreed with Muhammad=s trial strategy, he thought that Muhammad conducted effective cross-examination of the police officers. He also testified that appellant had numerous dismissals and acquittals but no convictions on his record. Still also expressed disappointment that appellant was sentenced to probation instead of serving time in the penitentiary.
Defense attorney Brett Ligon testified that defense counsel should communicate with witnesses and prepare them in advance of trial.[10] According to Ligon, speaking to witnesses for the first time during breaks in the trial would fall below professional norms, although he conceded that character witnesses did not require the same degree of preparation as eyewitnesses. Ligon acknowledged that he typically would not subpoena friendly witnesses in hopes of surprising the prosecution; however, he stated that relying on a client to secure a witness that the attorney had not also contacted would fall below professional norms. Ligon also opined that failure to consult with a designated expert witness and to research their credentials would fall below professional norms. Ligon also testified that the client ultimately should decide whether to testify in his own defense.
The court denied appellant=s motion for new trial on May 5, 2005. On appeal, appellant alleges that Muhammad=s representation fell below the prevailing professional norms for a reasonable defense attorney practicing in Harris County, Texas by: (1) failing to interview and secure the attendance of necessary witnesses; (2) failing to prepare adequately for trial; (3) failing to allow appellant to testify; and (4) failing to present mitigating evidence at the punishment phase.
Standards of Review
We review a trial court=s ruling on a motion for new trial under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). When, as here, the motion alleges ineffective assistance of counsel, we must determine whether the trial court=s determination of the ineffective assistance claim and denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. Freeman v. State, 167 S.W.3d 114, 116-117 (Tex. App.CWaco 2005, no pet.).[11]
The two-pronged standard of review for a claim of ineffective assistance of counsel is well-established and applies to both the guilt/innocence and punishment phases of trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999); Milburn v. State, 15 S.W.3d 267, 269 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The appellant must prove ineffective assistance by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
First, the appellant must demonstrate that counsel=s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687; Hernandez, 988 S.W.2d at 770. The appellant must show that Acounsel made errors so serious that counsel was not functioning as the >counsel= guaranteed the defendant by the Sixth Amendment.@ Strickland, 466 U.S. at 687. There is a strong presumption that counsel rendered effective assistance. Id. at 690. When evaluating the effectiveness of counsel, an appellate court looks to the totality of the representation and the particular circumstances in each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Secondly, the appellant must establish that counsel=s performance was so prejudicial that it deprived appellant of a fair trial. Strickland, 466 U.S. at 686; Hernandez, 988 S.W.2d at 770. To establish prejudice, an appellant must show that a reasonable probability exists that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Failure to Interview and Secure Attendance of Necessary Witnesses
In his first point of error, appellant argues that Muhammad rendered ineffective assistance by failing to interview and subpoena Dr. Salazar as well as the character witnesses on appellant=s two lists. We disagree.
Counsel=s failure to call witnesses at the guilt/innocence or punishment phases is irrelevant absent a showing that the purported witnesses were available and that their testimony would have benefitted the appellant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Furthermore, the appellant must overcome the presumption that, under the circumstances of the case, counsel=s contested actions may be considered sound trial strategy. Strickland, 466 U.S. at 690. Strategic and tactical decisions are virtually unchallengeable when made after thorough investigation of the facts and law. Id.
At the hearing on the motion for new trial, Muhammad testified that Dr. Salazar had no knowledge of the drugs appellant might have taken on July 6. Furthermore, according to Muhammad, appellant stated that Coody could testify about the substances appellant had taken on the night of the assault. Muhammad also testified that he adjusted his trial strategy because the facts of appellant=s case suggested voluntary intoxication, which is not a defense to assault. Muhammad also explained that he did not subpoena friendly witnesses before trial because appellant had assured him that he could secure their attendance. Muhammad stated that he did not try to interview Cook because he did not believe the officer would discuss the case. Muhammad also testified that he spoke with several character witnesses before trial but decided not to interview all of them because their testimony would be cumulative.
In light of Muhammad=s testimony, appellant has failed to prove that the testimony of the absent witnesses would have benefitted him. Appellant has failed to show that Dr. Salazar=s testimony would have benefitted him because Dr. Salazar had no personal knowledge of the drugs or combination of substances that appellant might have taken on the night of the assault. Furthermore, because voluntary intoxication is not a defense to assault, Dr. Salazar=s testimony on that point would have been irrelevant. See Tex. Pen. Code Ann. ' 8.04(a) (Vernon 2003) (stating that A[v]oluntary intoxication does not constitute a defense to the commission of a crime@). Similarly, appellant has failed to prove that the testimony of additional character witnesses would have benefitted him. Presumably, any additional witnesses simply would have echoed the opinion that appellant was essentially a good person, rendering their testimony cumulative. Accordingly, we hold that Muhammad=s performance was not deficient in this respect. See also Hale v. State, 140 S.W.3d 381, 392 (Tex. App.CFort Worth 2004, pet. ref=d) (counsel was not ineffective for failing to investigate and interview defense witnesses in child molestation case who would testify that they had never seen the defendant act inappropriately with children and that children never appeared to be afraid or uncomfortable around defendant); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.CTyler 1996, pet. ref=d) (counsel will not be considered ineffective for failing to call every witness requested by a defendant, especially if the witnesses= testimony would be cumulative); Turner v. State, 932 S.W.2d 622, 625 (Tex. App.CHouston [14th Dist.] 1996, no pet.) (counsel not ineffective for failing to call any character witnesses when character witnesses knew nothing of the facts of the assault and could testify only about defendant=s good reputation for truth and peacefulness).
Even if Muhammad=s representation fell below an objective standard of reasonableness in this respect, we cannot say that appellant was prejudiced. There is not a reasonable probability that the outcome of the trial would have been different but for Muhammad=s failure to call Dr. Salazar and additional character witnesses because there is substantial evidence that appellant assaulted Officer Cook, and again, voluntary intoxication is not a defense to assault. Furthermore, even though the prosecutor requested the jury to sentence appellant to Ano less than four years@ in jail, the jury assessed a punishment of only seven years= probation and a fine. See Green v. State, 829 S.W.2d 938, 939 (Tex. App.CFort Worth 1992, no pet.) (defendant was not harmed when the jury assessed a punishment significantly lower than that requested by the State); Rumph v. State, 687 S.W.2d 489, 494 (Tex. App.CHouston [14th Dist.] 1987, no pet.) (defendant was not harmed when the jury assessed a punishment of probation instead of time in the penitentiary). We overrule appellant=s first point of error.
Inadequate Trial Preparation
In his second point of error, appellant argues that Muhammad rendered ineffective assistance because he did not adequately prepare the testifying witnesses and because he failed to discuss appellant=s potential testimony and the issues relevant to his defense. We disagree.
First, Muhammad testified that he spoke with appellant several times prior to trial, and appellant stated in his affidavit that he came to Muhammad=s office. There is no evidence in the record to support appellant=s accusation that Muhammad did not discuss his defense other than appellant=s own statements. Because there is a conflict on this point, we must defer to the trial court=s judgment. See Jones, 2004 WL 231309 at *8. Accordingly, we hold that appellant has failed to overcome the presumption of competence on this point.
Regarding the allegedly inadequate preparation of his defense witnesses, appellant relies on Guzmon v. State, 730 S.W.2d 724, 734 (Tex. Crim. App. 1987), in which the Court of Criminal Appeals remarked that counsel=s assistance was ineffective when he met in the hallway with the two witnesses who testified on appellant=s behalf at the punishment stage immediately before the punishment stage began. The court noted that it was obvious from counsel=s questioning of the defendant=s wife that he did not know what her testimony would be. Id. Similarly, the court noted that counsel seemed unaware of how his own expert witness would testify and highlighted counsel=s testimony at the hearing on the writ of habeas corpus that the expert=s testimony had been Aa disappointment@ and Awas more of a burden to the defense than it was an asset.@ Id. Furthermore, the court stressed that the expert=s testimony that people from ALatin cultures,@ like the defendant, Arefuse to take responsibility for their actions@ was Aat best irrelevant and at worst harmful@ to the defendant. Id.
Assuming without deciding that Muhammad=s representation fell below an objective standard of reasonableness, we hold that Muhammad=s preparation of defense witnesses did not prejudice appellant. Muhammad testified that he had spoken with appellant and his parents before trial and felt that he had adequately prepared all the defense witnesses= testimony. Additionally, although he learned about Kennedy only during the week of trial, Muhammad did not appear to be surprised by Kennedy=s testimony or the other witnesses= testimony. More importantly, unlike the cases upon which appellant relies, none of the defense witnesses at either the guilt/innocence or the punishment phases said anything that harmed appellant; rather, their testimony portrayed appellant as a productive, non-violent person who behaved normally when he took his medication properly. Finally, as discussed above, appellant received only probation and a fine instead of jail time as punishment. We overrule appellant=s second point of error.
Failure to Allow Appellant to Testify
In his third point of error, appellant complains that Muhammad rendered ineffective assistance by refusing to allow him to testify on his own behalf.[12] We disagree.
The only evidence in the record that appellant ever informed Muhammad of his desire to testify is appellant=s statement to that effect. Muhammad stated that he initially planned to put appellant on the stand but later changed his mind because he thought that appellant had a prior conviction. Muhammad also testified that appellant never expressed a desire to testify and remained silent when Muhammad told him that he would not be testifying. Muhammad interpreted appellant=s silence as ratification. In light of the discrepancies between appellant=s and Muhammad=s accounts, we must again defer to the judgment of the trial court. We cannot say that Muhammad=s representation fell below professional norms by not allowing appellant to testify. We overrule appellant=s third point of error.
Failure to Present Mitigating Evidence
In his final point of error, appellant alleges that during the punishment phase, Muhammad did not present mitigating evidence on the issue of appellant=s prescription medication and its effects on his behavior. We disagree.
As discussed above, Muhammad=s decision not to call Dr. Salazar did not constitute ineffective assistance. Furthermore, the testimony of the other defense witnesses, particularly appellant=s mother, relayed to the jury that appellant needed medication and behaved normally when he took it properly. Appellant refers this court to our decision in Milburn v. State, 15 S.W.3d 267, 271 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d), in which we held that defense counsel=s failure to present mitigating evidence was prejudicial and amounted to ineffective assistance. In that case, counsel presented no mitigating evidence whatsoever, despite the availability of friends and family to testify. Id. at 270. In appellant=s case, however, witnesses testified that they would help ensure that appellant was properly medicated and also characterized him as a hard-working, productive person. Clearly, Milburn and appellant=s case are distinguishable on that basis. Appellant has produced insufficient evidence to overcome the presumption that Muhammad rendered competent assistance. Therefore, we overrule appellant=s final point of error and affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed April 20, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The jury recommended and the judge imposed a sentence of seven years= probation and a $10,000 fine.
[2] Muhammad presented five new witnesses and recalled Officers Cook and Armstrong.
[3] Muhammad also asked Coody if appellant Ahas any type of emotional condition,@ why appellant took Adderol, whether Coody Aover[saw] [appellant] taking any medications,@ and A[w]hat happens when [appellant] doesn=t take [Adderol].@ The trial court sustained the State=s objections to these questions.
[4] The trial court held a bench conference after the State objected to Muhammad=s questioning Ms. Ramirez about appellant=s behavioral problems and his medication. The State argued that Ms. Ramirez=s testimony was hearsay and that she did not qualify as an expert witness. Muhammad responded that he Ajust wanted to show [appellant=s] overall mental condition@ and that Ms. Ramirez=s testimony was based on conditions and reactions that she had observed Aas a mother.@
[5] The record indicates that Coody and appellant had cohabited for several years and that appellant considered her to be his wife. At the time of appellant=s trial, Coody had moved out of their shared residence; however, she testified that she and appellant were engaged. Meanwhile, Miles testified that she and appellant had recently reconnected and were seriously contemplating a future together. Miles further testified that to her knowledge, appellant and Coody were no longer a couple.
[6] Appellant appeared in court on January 25, at which time the case was re-set for February 7.
[7] Muhammad testified that he was not satisfied with appellant=s ability to assist in his defense and that it was important to obtain a medical opinion on the matter. However, according to Muhammad, the trial court indicated that appellant=s bond would be revoked if a psychological examination took place. Seeking to avoid revocation of appellant=s bond, Muhammad testified that he recommended that appellant be allowed to see his private psychiatrist instead; the trial court was unpersuaded and denied the motion for continuance. Although appellant complained of the lack of a competency hearing in his motion for new trial, he does not address this issue on appeal.
[8] Kennedy=s name did not appear on either of the two witness lists appellant provided.
[9] We note that in his opening statement at the guilt/innocence phase, Muhammad indicated that appellant had not been taking his medication on the night of the assault. However, for the remainder of the trial, references to appellant=s medication involved appellant=s taking it properly.
[10] Appellant contacted Ligon after the first day of trial to express his dissatisfaction with Muhammad=s representation.
[11] In an unpublished opinion, the Court of Criminal Appeals reaffirmed the abuse of discretion standard for review of a trial court=s ruling on a motion for new trial. See State v. Jones, No. 678-02, 2004 WL 231309, *8 (Tex. Crim. App. Jan. 28, 2004) (not designated for publication). The court further noted that despite the abuse of discretion standard, reviewing courts are not bound by the trial court=s legal conclusion on the issue of ineffectiveness, and they may independently decide the issue while still granting deference to the trial court=s findings on subsidiary fact issues. Id.
[12] Appellant also claims that Muhammad=s failure to allow him to testify violated certain of his rights under the federal and state constitutions and the Code of Criminal Procedure. However, appellant argues ineffective assistance of counsel as his sole point of error on appeal, and his analysis pertains only to that issue.