Affirmed and Memorandum Opinion filed November 20, 2008.
In The
Fourteenth Court of Appeals
____________
NO. 14-07-01033-CR
____________
DEANA ELIZABETH COALE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1116719
M E M O R A N D U M O P I N I O N
Appellant, Deana Elizabeth Coale, pleaded guilty to state jail felony theft and attempted theft. The trial court found appellant guilty of both offenses and sentenced her to two years= incarceration. In a single issue, appellant contends that she received ineffective assistance of counsel because her attorney failed to: (1) adequately investigate the case, (2) properly prepare appellant for a presentence interview, and (3) present mitigating evidence at the punishment hearing. We affirm.
Background
Appellant pleaded guilty to unlawfully appropriating cash in the value of between $1,500 and $20,000 from complainant Malaak Abushaaban. She also pleaded guilty to the attempted theft of between $80,000 and $100,000 from complainant Charles Hollis.
In the presentence investigation (PSI) report, the investigator summarized a phone conversation with Abushaaban, during which Abushaaban stated that he owned a company which sold water purification systems. According to Abushaaban, appellant was working as a salesperson for an independent contractor when she forged a contract for a sale purportedly to Cheryl Peterson and was paid a commission by Abushaaban. Appellant=s scheme was revealed when the financing company called Peterson to verify the contract.
At the punishment hearing, Peterson testified that she had known appellant for over twenty years and that they had been close friends. Appellant moved in with Peterson when appellant was having trouble with her boyfriend. At some point, appellant offered to give Peterson a water softener. Peterson subsequently received a phone call from a financing company, which informed her that she was 60-days delinquent in paying for the equipment. The company also informed her that a check with Peterson=s name on it had been returned for insufficient funds. Peterson later discovered that appellant had forged Peterson=s name to the water softener contract and had put Peterson=s name and information on a temporary check for a bank account not owned by Peterson. Peterson said that she did not give appellant permission to sign such a contract or check. As a result of appellant=s conduct, Peterson says that she now has a lien against her property and has negative entries in her credit history. When asked what she thought of appellant=s request for probation, Peterson told the court that appellant Ahas been on probation many times, [and] it has not helped her.@
Charles Hollis also testified at the hearing, explaining that appellant formerly worked for him as a water purification equipment sales representative. According to Hollis, appellant forged customers= names to contracts that would have qualified her for over $86,000 in commissions. Appellant=s scheme was discovered before the commissions were paid. Hollis encouraged the court to sentence appellant to at least seven to ten years= incarceration.
In the PSI report, the investigator noted that in a face-to-face interview, appellant denied any wrongdoing. She specifically denied forging the contract or the temporary check. Appellant also testified at the hearing on her own behalf. She acknowledged that she pleaded guilty, that she accepted responsibility, and that she had signed a confession regarding the contracts she submitted while working for Hollis. She then suggested that the problem with the contracts for Hollis was not her fault, and she stated that she signed the confession under duress. She further insisted that her commissions on those contracts would not have been as high as Hollis claimed. Appellant acknowledged telling Peterson that she wanted to put a water softener in Peterson=s home. Appellant again denied forging Peterson=s name to the contract or the temporary check but admitted telling Peterson that she would pay for the equipment with her commissions check from Abushaaban. Appellant said that she still feels obligated to pay for the water softener but never received her commissions to be able to do so. Appellant claimed that the temporary check belonged to her and that she put it in the work file Ajust to show that first payment would have been made.@ Appellant insisted that she did not intend to cause Peterson to have bad credit or a lien against her property.
On cross-examination, appellant acknowledged telling the judge at the plea proceeding that she was pleading guilty because she was guilty and for no other reason. Indeed, she denied having previously denied any wrongdoing to the PSI investigator. She said that AI accept responsibility to the extent that I have stated.@ Appellant also agreed that the confession she signed was accurate. She contended, however, that Hollis=s damage claims were inflated. While she acknowledged that she told Peterson she was going to give Peterson a water softener, appellant continued to deny forging Peterson=s name on the contract or the temporary check. At the close of the punishment hearing, the trial court found appellant guilty of both charges and sentenced her to two years= confinement to run concurrently.
Appellant subsequently filed a motion for new trial, contending that her trial counsel (1) inadequately investigated the case, (2) improperly prepared her for the PSI interview, and (3) failed to present any mitigating evidence at the punishment hearing. Attached to the motion was an affidavit from appellant=s new counsel stating that she had received from prior counsel=s assistant what the assistant represented to be prior counsel=s entire file on appellant=s case. The file in question is also attached to the motion and includes: the PSI report, various motions, notices, and court forms, and a database information sheet regarding the charged offenses, which also contains six handwritten lines regarding the facts of the case. In her affidavit, new counsel further stated that appellant related to her the information contained in the motion for new trial and that such information is true to the best of counsel=s knowledge.
Also attached to the motion is what purports to be an AInmate=s Declaration.@ This document appears to signed by appellant, although it was not notarized or otherwise witnessed. In this declaration, appellant stated that her prior counsel was always late to court appearances and never had time to talk with appellant about the facts. Appellant said that counsel told her to plead guilty because the judge would probably follow counsel=s recommendation for probation. Appellant further complained that counsel failed to return her calls either before or after the interview with the investigator. According to the declaration, counsel also failed to tell appellant that she needed to obtain witnesses on her behalf for the punishment hearing and failed to prepare appellant for the questions that would be asked at the hearing.
Additionally, an affidavit by a criminal defense attorney was attached to the motion. In the affidavit, the attorney opined that it would be unprofessional for an attorney to (1) participate in a guilty plea knowing that the client would later deny guilt, and (2) fail to attend a PSI interview with his or her client. Lastly, several letters from appellant=s family, attesting to her good qualities, were attached to the motion. The letters were not notarized and are not in affidavit form. The trial court denied the motion during an extremely brief hearing at which appellant=s counsel did not attempt to introduce any evidence or request that the trial court consider the items attached to the motion.
Standards of Review
The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In reviewing an ineffective assistance claim, an appellate court Amust indulge a strong presumption that counsel=s conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.@ Strickland v. Washington, 466 U.S. 668, 689 (1984). Under the two‑pronged Strickland test, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel=s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). This is particularly true when the alleged deficiencies are matters of omission and not of commission revealed in the record. Id. A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). The case before us is not a habeas corpus proceeding, and while appellant did file a motion for new trial, no evidentiary hearing was held on the motion.
Representation may fall beneath an objective standard of reasonableness if counsel fails to conduct an adequate pretrial investigation. See Wiggins v. Smith, 539 U.S. 510, 521-22, 533-34 (2003). Counsel has a duty to make reasonable investigations or reasonable decisions that make such investigations unnecessary. Id. at 521-22. A particular decision not to investigate must be directly assessed for reasonableness under all the relevant circumstances, allotting great deference to counsel=s judgments. Id. at 521-22, 533-34. Counsel=s failure to adequately prepare witnesses can also raise questions as to the effectiveness of the representation. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Lastly, counsel may also be deemed ineffective for failing to investigate, interview, and present favorable witnesses in the punishment phase. See Lair v. State, No. 01-07-00414-CR, 2008 WL 2611879, at *13 (Tex. App.CHouston [1st Dist.] 2008, pet. filed); Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
Discussion
This case highlights the difficulty of assessing an attorney=s performance without the benefit of an evidentiary hearing. Again, appellant asserts that her counsel was ineffective because she did not adequately investigate the case or prepare appellant for the presentence interview and because she did not present any mitigating evidence at the punishment hearing. However, there is no evidence in the record regarding any of these allegations. Trial counsel did not testify, so we do not know what she did to investigate the case, what she did to prepare appellant for the interview, whether she talked to any potentially favorable witnesses for appellant, or if so, why she chose not to call them.[1] See Jackson, 973 S.W.2d at 957 (explaining that in the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel); see also Rylander, 101 S.W.3d at 111 (Atrial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective@). While often the absence of the attorney=s testimony leaves us without an understanding of the strategic reasoning behind the attorney=s choices, here, the absence of such testimony leaves us without knowledge of what the attorney actually did to investigate and prepare this case.
The new attorney=s affidavit and the attached case file, supposedly from trial counsel=s office, likewise fail to establish what trial counsel did to investigate the case or prepare for the punishment hearing. To begin with, neither the affidavit nor the file were introduced into evidence. See Jackson v. State, 139 S.W.3d 7, 20-21 (Tex. App.CFort Worth 2004, pet. ref=d) (holding that an affidavit attached to a motion for new trial does not constitute evidence unless it is admitted into evidence at the hearing on the motion).[2] Furthermore, even if admissible and admitted into evidence, the affidavit and case file would at most demonstrate what was in the file. They do not demonstrate the extent of trial counsel=s investigation or preparation. Counsel may have taken numerous steps not memorialized in the file. We just do not know.
Similarly, the Inmate=s Declaration, which appellant supposedly signed, was not introduced into evidence, was not notarized, was not otherwise in affidavit form, and does not purport to detail the extent of trial counsel=s investigation or preparation. Also, appellant did not testify at the hearing. The expert affidavit attached to the motion is very careful to not state any facts, only opinions based on assumed facts. Lastly, none of the attached letters purportedly signed by potential witnesses indicate whether or not the witnesses spoke with trial counsel. These letters also were not notarized or admitted into evidence.
In summary, there is no evidence to show what trial counsel did to investigate or to prepare her client for the interview, and there is no evidence as to whether she spoke to any witnesses who might have spoken favorably about appellant or, if she did, why she decided not to have them testify. Accordingly, we find that appellant has failed to prove by a preponderance of the evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 813.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed November 20, 2008.
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
Do Not Publish C Tex. R. App. P. 47.
[1] On the matter of counsel=s failure to call character witnesses, compare this case to Lair v. State, in which the appellant introduced into evidence testimony from trial counsel regarding why he decided to not interview or call potential character witnesses as well as affidavits from the potential witnesses. 2008 WL 2611879, at *13. Based on this evidence, the court of appeals concluded that trial counsel provided ineffective assistance in the punishment phase. Id. at *14.
[2] In Bahlo v. State, 707 S.W.2d 249, 251-52 (Tex. App.CHouston [1st Dist.] 1986, no pet.), and again in Labib v. State, 239 S.W.3d 322, 333-34 (Tex. App.CHouston [1st Dist.] 2007, no pet.), the First Court of Appeals noted the general rule that affidavits attached to motions for new trial do not constitute evidence, but then explained that if the trial court and the parties treat the affidavits as evidence at the hearing on the motion, the affidavits are effectively admitted into evidence and can be considered as evidence on appeal. There is no indication in the record before us that the trial court or the parties considered the subsequent attorney=s affidavit as evidence at the hearing on the motion for new trial.