Affirmed and Memorandum Opinion filed December 11, 2008.
In The
Fourteenth Court of Appeals
____________
NO. 14-07-00929-CR
____________
JUSTIN GLAZE EDMONDS, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 39,353 Hc1
M E M O R A N D U M O P I N I O N
Appellant, Justin Glaze Edmonds, was convicted of aggravated sexual assault of a child. Following an unsuccessful appeal, appellant applied for a writ of habeas corpus, in which he argued that he was denied the effective assistance of counsel because his trial attorney failed to request that the State elect which of two alleged sexual acts upon which it would rely. The trial court denied habeas corpus relief, prompting this appeal. We affirm.
BACKGROUND
Appellant was indicted for aggravated sexual assault of a child younger than 14 years of age. See Tex. Penal Code Ann. ' 22.021 (Vernon Supp. 2008). The indictment recited that the offense occurred on or about March 1, 2002. At trial, the jury heard additional evidence that, soon after the charged incident, appellant again committed the offense of aggravated sexual assault against the child complainant. Defense counsel did not request that the State be required to elect between the two instances of the charged act. This failure to compel an election, appellant now contends, amounts to ineffective assistance of counsel.
The jury charge, like the indictment, stated that the alleged offense occurred on or about March 1, 2002. The jury found appellant guilty Aas charged in the instrument@ and assessed punishment at five years= confinement, but recommended that appellant be granted community supervision. The trial judge heeded the jury=s recommendation and ordered appellant to community supervision. Appellant appealed his conviction, contending that he received ineffective assistance of counsel because his attorney failed to object when the State moved to amend the indictment on the date trial began. We affirmed appellant=s conviction. See Edmonds v. State, No. 14-05-00309-CR, 2006 WL 1147720 (Tex. App.CHouston [14th Dist.] March 30, 2006, no pet.) (mem. op., not designated for publication).
Appellant then applied for a writ of habeas corpus, arguing that he received ineffective assistance of counsel because his attorney failed to compel an election. The trial court found that habeas relief was unavailable because appellant could have raised this argument, with his other ineffective-assistance claim, on appeal. See Tex. Code Crim. Proc. Ann. art. 11.072, ' 3(a) (Vernon 2005). In denying the application for habeas corpus, the trial court also concluded:
Based on the charge submitted to the jury, Defense counsel was not required to compel an election between offenses when only one specific act was included in both the jury charge and the indictment. As such, the defendant is unable to show that counsel=s performance was deficient or that the outcome of his trial would have been different, but for counsel=s alleged error.
This appeal followed. Appellant contends the trial court erred in denying his application for habeas corpus. The State responds, in part, by arguing that appellant is procedurally barred from pursuing habeas relief because of his failure to present his argument on direct appeal.
PROCEDURAL BAR TO HABEAS CORPUS RELIEF
Article 11.072 of the Code of Criminal Procedure sets forth the procedure for one who seeks a writ of habeas corpus in a felony case following a judgment of conviction that orders the applicant to community supervision. Tex. Code Crim. Proc. Ann. art. 11.072, ' 1. If the applicant could have obtained the requested relief through a direct appeal, he may not file an application for writ of habeas corpus. See id. art. 11.072, ' 3(a); Ex parte Pena, 71 S.W.3d 336, 338 (Tex. Crim. App. 2002). The State contends that appellant could have presented his current complaint in the earlier appeal, noting that appellant did, in fact, raise an ineffective-assistance claim by direct appeal. See Edmonds, No. 14-05-00309-CR, 2006 WL 1147720, at *1. We disagree.
A claim of ineffective assistance must be firmly supported in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Where the record is silent as to counsel=s motivations for tactical decisions, as was the case during appellant=s direct appeal, the appellant often cannot overcome the Astrong presumption that counsel=s conduct was reasonable.@ See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In fact, we overruled appellant=s earlier ineffective-assistance contention for that very reason: AWith respect to counsel=s performance, the record does not reflect counsel=s reasons or strategy behind waiving the ten-day continuance. Therefore, appellant is unable to show his attorney=s performance was deficient.@ Edmonds, No. 14-05-00309-CR, 2006 WL 1147720, at *1 (footnote omitted).
Generally, a record on direct appeal is inadequate to demonstrate ineffective assistance of counsel. See Freeman v. State, 125 S.W.3d 505, 511 (Tex. Crim. App. 2003). For that reason, the Abetter course@ may require that an ineffective-assistance claim be pursued in habeas proceedings. See id.; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); State v. Webb, 244 S.W.3d 543, 546 (Tex. App.CHouston [1st Dist.] 2007, no pet.).
The general rule applies in this case. Appellant=s trial counsel first explained his reasoning for failing to request an election in an affidavit filed on September 24, 2007. See Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (discussing importance of trial counsel=s affidavit in resolving ineffective-assistance claims). Because the record on direct appeal did not explain defense counsel=s decision not to request an election, appellant could not have prevailed in a challenge based on his attorney=s performance in the direct appeal. See Webb, 244 S.W.3d at 546; Edmonds, No. 14-05-00309-CR, 2006 WL 1147720, at *1. We hold that article 11.072 does not bar appellant from pursuing habeas relief.
FAILURE TO REQUEST ELECTION
A. Standard of Review
We apply a two-pronged test to ineffective-assistance claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, appellant must prove that counsel=s performance was deficient, that is, his attorney=s representation fell below an objective standard of reasonableness. See id. at 687B88. Second, appellant must show that counsel=s deficient performance prejudiced his defense. See id. at 687. This element requires the appellant to demonstrate a reasonable probability that, but for the allegedly deficient representation, the result of the proceeding would have been different. See id. at 694. A Areasonable probability@ means a probability that is sufficient to undermine confidence in the outcome. Id. The appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.
As we review appellant=s complaint, we are reminded that his constitutional right to counsel does not require errorless or perfect counsel. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). We are to presume that trial counsel rendered effective assistance. See Mallett, 65 S.W.3d at 63. Therefore, appellant must overcome the strong presumption that, under the circumstances, his attorney=s action might be considered sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Counsel=s performance will be deemed sufficient if any strategic motive can be envisioned, and will be considered deficient only if Athe conduct is so outrageous that no competent attorney would have engaged in it.@ Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). In deciding whether counsel was ineffective, we will consider the totality of counsel=s representation, and will not judge counsel=s strategic decisions in hindsight.[1] Thompson, 9 S.W.3d at 813.
B. Analysis
Appellant suggests that the failure to request an election, where available, automatically amounts to ineffective assistance of counsel, citing Yzaguirre v. State, 957 S.W.2d 38 (Tex. Crim. App. 1997). Appellant relies on the following language, which is found in the concurring, not majority, opinion: AIn the instant case, appellant did not request an election and limiting instruction as to non-elected or >extraneous= incidents, although he would have been entitled to both. Appellant=s counsel was probably ineffective in failing to do so.@ Id. at 40 (Meyers, J., concurring). Regarding this statement, however, the Third Court of Appeals has rejected the idea that the failure to request an election Aautomatically amount[s] to ineffective assistance.@ See Estevane v. State, No. 03-04-00257-CR, 2006 WL 504903, at *3 (Tex. App.CAustin March 2, 2006, pet. ref=d) (mem. op., not designated for publication). In fact, numerous Texas courts have observed that, in light of the law on double jeopardy, the decision not to request an election may equate to sound trial strategy. See, e.g., Bernard v. State, No. 14-07-00473-CR, 2008 WL 4308467, at *4 (Tex. App.CHouston [14th Dist.] Aug. 28, 2008, no pet.) (mem. op., not designated for publication); Brown v. State, 6 S.W.3d 571, 577 (Tex. App.CTyler 1999, pet. ref=d); see also Beheler v. State, 3 S.W.3d 182, 186 (Tex. App.CFort Worth 1999, pet. ref=d) (ABeheler=s trial attorney could have reasonably decided against asking for an election and a limiting instruction to avoid drawing the jury=s attention to the extraneous offenses.@).
However, we need not decide the wisdom of the decision by appellant=s trial counsel not to request an election because, based on the record presented, we cannot conclude that counsel=s decision prejudiced appellant=s defense. Therefore, appellant has not carried his burden of demonstrating ineffective assistance of counsel. See Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 813.
Generally, when one act of intercourse is alleged in the indictment but the evidence at trial shows more than one act of intercourse, the State must elect the act upon which it will rely for conviction. See O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Once the State rests its case-in-chief, the trial court must grant a timely request by the defendant to order the State to make an election; failure to do so constitutes error. See Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006). Generally, an election serves two important purposes. First, an election gives the defendant notice of the particular offense the State intends to rely upon, thereby affording the defendant the opportunity to defend himself. See O=Neal, 746 S.W.2d at 772. Second, election ensures unanimous jury verdicts and minimizes the risk that the jury might convict due to the sheer weight of several alleged acts, rather than proof of one or more crimes beyond a reasonable doubt. See Phillips, 193 S.W.3d at 910.
Appellant does not contend that the lack of an election deprived him of notice of the State=s intent to rely, for the purposes of conviction, upon the March 1 offense, that is, the first alleged act of aggravated sexual assault. See O=Neal, 746 S.W.2d at 772. The indictment expressly identified March 1, 2002 as the date of the charged offense. The second assault, it is claimed, occurred a few weeks later, on or about March 15, 2002. Despite the close proximity between the two alleged offenses, appellant was informed by the State=s Rule 404(b) notice[2] that the State would introduce evidence of the second assault as an Aextraneous@ act. Therefore, appellant has not shown that his attorney=s decision not to request an election impaired his ability to defend himself against the March 1 allegation. See id. However, that defense counsel was aware of the State=s informal Aelection@ by virtue of the indictment and Rule 404(b) notice, does not mean that the issue was necessarily settled in the minds of the jurors, who were not privy to the Rule 404(b) notice.
Thus, the crux of appellant=s argument is premised upon the concern that, absent an election, jurors may have voted to convict on differing offenses, thereby depriving him of the right to a unanimous jury verdict. See Phillips, 193 S.W.3d at 910. Defense counsel responded by affidavit, and the State now argues similarly, that the jury charge adequately informed the jury to consider only the March 1 offense in deciding guilt:
[T]here was no election required. Jury charge required the jury to find on or about March 1, 2002. The Application on page ten, last paragraph, referred to the 3/15/02 incident as an extraneous event. The only two events are the offense on the date of March 1, 2002 and the extraneous on March 15, 2002. The Jury charge required Aon or about@ March 1, 2002 and the Defendant is not entitled to any more specificity.
In denying appellant=s habeas application, the trial court likewise concluded that A[b]ased on the charge submitted to the jury, Defense counsel was not required to compel an election between offenses when only one specific act was included in both the jury charge and the indictment.@ In this case, however, we are not convinced that the jury charge sufficiently clarified for the jury which of the two alleged incidents the State was relying upon for conviction.
Although a valid jury charge does not necessarily substitute for an election,[3] the jury charge should reflect that an election has taken place. That is, had counsel requested an election, appellant would have been entitled to an instruction charging the jury to consider only the elected act in deciding guilt, and limiting the jury=s consideration of the other unelected act to the purposes for which it was admitted. See Isenhower v. State, 261 S.W.3d 168, 174 (Tex. App.CHouston [14th Dist.] 2008, no pet.); Rivera v. State, 233 S.W.3d 403, 406 (Tex. App.CWaco 2007, pet. ref=d). Although no election was requested, appellant nonetheless received a limiting instruction in the jury charge, which states as follows:
The defendant, Justin Glaze Edmonds, stands charged by indictment with the offense of Aggravated Sexual Assault, alleged to have been committed on or about the 1st day of March, 2002, in Fort Bend, Texas.
. . .
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses, if any, other than the offense, if any, alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same for the following purposes:
1) to determine the motive, intent, scheme, or design, if any, of the defendant,
2) to determine the state of mind of the defendant and the child, and,
3) for its bearing on the previous and subsequent relationship between the defendant and the child.
However, the charge also instructed the jury that the State was not bound by the exact date alleged in the indictment. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000). The complainant testified to two incidents of aggravated sexual assault that occurred in Fort Bend County, Texas within a short time frame, and could not further elaborate when the two incidents occurred in relation to each other. Based on the evidence presented at trial, then, the jury could have believed that both the first and second offense occurred Aon or about March 1, 2002.@ See Isenhower, 261 S.W.3d at 175. Therefore, the jury charge, by itself, does not instruct the jury to consider only the first act in deciding appellant=s guilt. See id.
However, in some cases the evidence, trial court=s instructions, and arguments of counsel may inform the jury as to the State=s Aelection@ even though the charge does not. See id. at 177; O=Neal, 746 S.W.2d at 772. Although appellant has not provided a complete record of the trial proceedings,[4] the witnesses= trial testimony was inserted into defense counsel=s file, which is included in the clerk=s record. Having divined defense counsel=s trial strategy from those records, we cannot say that the decision to forego an election Aso undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result.@ Thompson, 9 S.W.3d at 812B13.
Other than the complainant and the appellant, who did not testify, there were no witnesses to the two alleged assaults. Therefore, the State=s case turned entirely upon whether the jury believed the complainant=s testimony. Accordingly, trial counsel focused appellant=s defense on casting doubts about the believability of the complainant=s account.
The evidence reveals that the complainant=s outcry occurred in July 2003, during a heated argument between the complainant and her parents. That evening the complainant, then 14, was granted permission to accompany her 18-year-old boyfriend to the movies; however, a Montgomery County sheriff=s deputy discovered the couple Amaking out@ in a parked car. The complainant=s parents were telephoned, and they picked her up at the scene. During the ride home, there was a Avery heated argument@ between the complainant and her parents, in which the parents outlined their daughter=s punishment. After seeing that she was Ain serious problems@ with her parents, and after learning of the details of her punishment, the complainant disclosed the two alleged assaults perpetrated upon her by the appellant, whom she knew to be disliked by her father. Defense counsel elicited the following additional testimony from the complainant=s mother:
Q. And when you picked her up to bring her back, were both you and your husband very angry at her?
A. Yes, sir.
Q. All right. And was she upset about y=all being angry at her?
A. Yes, sir.
Q. Or was she upset about something else?
A. No, sir.
...
Q. All right. So, when y=all were coming home and your daughter knew that her father disliked [appellant], that=s when she told y=all that story about [appellant]?
A. Yes.
Q. And it was also at a time where she was grounded and being severely fussed at for whatever she was doing?
A. Yes.
Defense counsel then established, through testimony, that the complainant=s outcry succeeded in Astop[ping] the argument and conversation that was going on.@
Then, during appellant=s case-in-chief, counsel introduced the testimony of Quitta Cooper Uresti, who claimed to have a close, confidential relationship with the complainant. Under direct examination, Ms. Uresti testified that she observed nothing unnatural or inappropriate about the interactions between appellant and the complainant, even several months after the alleged assaults took place. Defense counsel also had the following exchange with Ms. Uresti:
Q. [H]as [the complainant] ever confided in you about any of the events that we=re here about today?
A. No, sir.
Q. Prior to her moving to Houston, did you think y=all=s relationship was such that, if she had problems, that she would confide in you?
A. Yes, she would have.
From these passages, defense counsel=s trial strategy becomes apparent. His intent was to discredit the complainant not based on the details of the alleged assaults but, rather, on the suggestion that the complainant fabricated the entire account in an effort to escape or lessen the severity of her parents= anger or planned punishment of her.
Appellant emphasizes a portion of the prosecutor=s closing argument in his brief to support his contention that the absence of an election permitted the State to urge the jury to convict on either of the two alleged assaults. However, neither of the parties= closing arguments are contained in the record. Therefore, we do not consider them. See Rasberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976).
In any event, forcing the State to elect between two alleged offenses would not necessarily benefit a defense that apparently was designed to show that both offenses were fictional, and that the complainant=s outcry was invented to distract her parents from punishing her. In light of this trial strategy, which challenged the complainant=s credibility on grounds other than the details of the two alleged assaults, we are not convinced that the failure to request an election prejudiced appellant=s defense. See Strickland, 466 U.S. at 687, 694; Thompson, 9 S.W.3d at 813 (AAppellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.@). Because appellant fails to satisfy the second prong of the Strickland test, we need not decide whether counsel=s performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
CONCLUSION
Finding no reversible error in the appellate record, we therefore affirm the trial court=s denial of appellant=s application for a writ of habeas corpus.
/s/ J. Harvey Hudson
Senior Justice
Judgment Rendered and Memorandum Opinion filed December 11, 2008.
Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.*
Do Not Publish. Tex. R. App. P. 47.2(b).
[1] Nor do we evaluate defense counsel=s representation, as appellant intimates, by that attorney=s performance in a different case. Appellant notes that, in an unrelated case, his trial counsel was found not to have conducted a reasonable factual investigation and, consequently, not to have rendered effective assistance to another defendant. See Miller v. Dretke, 420 F.3d 356, 363B64 (5th Cir. 2005). Generally, counsel has a duty to make reasonable investigation into the controlling facts and law of a case, or to make a reasonable decision that makes the particular investigation unnecessary. See Strickland, 466 U.S. at 691. Thus, courts need not defer to an attorney=s decisions that were uninformed by an adequate investigation into the controlling facts and law. U.S. v. Drones, 218 F.3d 496, 500 (5th Cir. 2000).
However, we decline to recast appellant=s contention as an inadequate-investigation claim. While counsel=s file does not indicate that he researched the issue of election, neither does the record demonstrate that he was unaware of the option to request an election where, as appellant concedes, the election doctrine has been in place since at least 1870:
It is true that a defendant cannot be punished under one indictment for two or more distinct offenses, committed at different times; and when it becomes apparent, either from the indictment or the proof on the trial, that the defendant is charged with different offenses, the prosecution may be forced to elect which act shall be prosecuted.
State v. Bradley, 34 Tex. 95, 1871 WL 7359, at *3 (1870). Therefore, we cannot accept the premise that any strategic decision by counsel that is not buttressed by legal research necessarily constitutes Ainadequate investigation@ that enjoys no deference whatsoever. See, e.g., Beheler v. State, 3 S.W.3d 182, 185B86 (Tex. App.CFort Worth 1999, pet. ref=d) (employing deference notwithstanding claim that counsel=s election decision resulted from Alack of knowledge of the applicable case law@).
[2] Upon a defendant=s timely request in a criminal case, the prosecution must give reasonable notice of its intent to introduce evidence of crimes, wrongs, or acts other than those that arise in the same transaction. See Tex. R. Evid. 404(b).
[3] See Phillips, 193 S.W.3d at 912. The Court of Criminal Appeals explained that, because one of the purposes for an election is to notify the defendant of the specific act to be defended, a valid jury chargeCwhich is not given until the end of trialCcannot, by itself, constitute a de facto election. See id.
Hypothetically, such notice to the defendant could arrive, as here, by the combination of an indictment specifying the date of the charged act and a separate Rule 404(b) notice characterizing all other acts as extraneous. However, this alternative arrangement would still require that the jury be sufficiently informed as to the specific act upon which the State was relying for conviction. See Isenhower v. State, 261 S.W.3d 168, 175 (Tex. App.CHouston [14th Dist.] 2008, no pet.).
[4] On January 10, 2008, after we notified the parties that no reporter=s record had been filed, appellant referred us to the record from his direct appeal. Generally, the appellate record in one case cannot be used in another case. See, e.g., Jones v. State, 931 S.W.2d 35, 38 n.1 (Tex. App.CHouston [1st Dist.] 1996, no pet.). We note that appellant has not filed a motion to transfer the reporter=s record from his direct appeal. See, e.g., Webb, 244 S.W.3d at 546 n.7; Narmah v. Waller Indep. School Dist., 257 S.W.3d 267, 268 (Tex. App.CHouston [1st Dist.] 2008, no pet.). Our review is limited to the evidence properly in the record before us. See Rasberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976); Goodchild v. Bombardier-Rotax GMBH Motorenfabrick, 979 S.W.2d 1, 9 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).
* Senior Justice J. Harvey Hudson sitting by assignment.