Affirmed and Memorandum Opinion filed May 29, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00586-CR
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BARON ANTONIO WHITE , Appellant
V.
THE STATE OF TEXAS , Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1101768
M E M O R A N D U M O P I N I O N
Appellant, Baron Antonio White, pleaded guilty to aggravated robbery with a deadly weapon without an agreed recommendation on punishment, and the trial court sentenced him to thirty years= imprisonment. In two issues, appellant claims that: (1) he was denied effective assistance of counsel; and (2) the trial court erred in denying his motion for new trial. We affirm.
BACKGROUND
On October 26, 2006, appellant robbed Ronald Yeatts at gunpoint, stealing his wallet and truck, while Yeatts was putting gas in his truck at a gas station. Appellant was later detained and charged as a juvenile. The juvenile court waived its jurisdiction, and the case was transferred to district court, where appellant was charged by indictment for aggravated robbery with a deadly weapon. Appellant pleaded guilty to the offense as alleged in the indictment without an agreed recommendation. The trial court found appellant guilty of aggravated robbery and reset the case for a punishment hearing. After hearing testimony and reviewing the presentence investigation (APSI@) report, and appellant=s juvenile and medical records, the trial court sentenced appellant to 30 years= imprisonment. On appeal, appellant argues that: (1) he was denied effective assistance of counsel during the punishment phase; and (2) the trial court erred by denying his motion for new trial based on ineffective assistance of counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, appellant asserts that he was denied effective assistance of counsel because his trial attorney failed to investigate his mental health history and failed to offer mitigating evidence of an alleged mental illness. To prove ineffective assistance of counsel, appellant must demonstrate that: (1) his counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) there was 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, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). In the context of a guilty plea, appellant satisfies the second prong of the Strickland test if he shows there is a reasonable probability that but for counsel=s errors, he would not have pleaded guilty, but rather insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).
There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We also indulge a strong presumption that counsel=s actions were motivated by sound trial strategy, and we will not conclude the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S.1195, 123 S. Ct. 1351, 154 L. Ed. 2d 1030 (2003). We look to the totality of the representation and not to isolated instances of error or to only a portion of the proceedings. Id. In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506-507 (Tex. Crim. App. 2003).
Appellant argues that trial counsel=s performance amounted to ineffective assistance because he failed to: (1) request a psychiatric or psychological examination to determine appellant=s competency and sanity; and (2) call a mental health expert and other mitigating witnesses regarding his mental health history during the punishment hearing. With respect to appellant=s complaint that trial counsel failed to request a mental health examination to determine his competency and sanity, the record affirmatively contradicts his allegations. There is evidence that, before appellant=s guilty plea, his mental health was examined to determine his competency. The mental/psychological report acknowledged appellant=s two previous suicide attempts, but indicated that appellant=s thought processes were logical and coherent. The report diagnosed appellant with disruptive behavior disorder, mood disorder, and cannabis dependence. The report concluded that appellant did not suffer from a significant mental illness or defect which would preclude him from participating in the legal process. Accordingly, appellant=s complaint that no mental evaluation was performed is without merit.
Even if no mental health examination had been performed, there is no evidence in the record warranting the need of such examination. While appellant=s medical records reveal a history of depression, there is no evidence of a mental illness rendering appellant legally incompetent or insane. In fact, appellant testified that he knew his criminal acts were dangerous and wrong at the time he committed them and had committed the robbery to Aget away and find somewhere to sleep.@ During his criminal proceedings, appellant was remorseful and took full responsibility for his actions. Because appellant=s mental health was examined and because there is no evidence in the record that appellant suffered from a mental illness rendering him legally incompetent or insane justifying the need for examination, appellant has failed to discharge his burden to affirmatively demonstrate the alleged ineffectiveness of his counsel=s representation.
Appellant also argues that he received ineffective assistance because trial counsel failed to present a mental health expert and other mitigating evidence regarding appellant=s mental health. During his testimony at the punishment hearing, appellant took full responsibility for his acts, was remorseful, and testified that he had learned from the incident. Joe De La Cerda, Jr., a retired police officer and mentor to appellant, testified that appellant possibly committed the crime because his mother abandoned him at an early age. Cynthia White, appellant=s grandmother, testified that appellant suffered from depression due to his mother=s abandonment and attempted suicide twice. She also indicated that appellant exhibited severe behavioral problems as a teenager and committed criminal offenses as a juvenile prior to the instant case. The psychological examination was also introduced as evidence during the punishment hearing. The examination indicated that appellant previously suffered from depression and diagnosed appellant with mood and behavior disorders. The PSI report and appellant=s medical reports were introduced, detailing appellant=s suicide attempts and history of depression. The record affirmatively reveals that defense counsel offered mitigating evidence referencing appellant=s bout with depression and other emotional issues. Because trial counsel produced mitigating testimony, medical records, and the PSI report, there may have been strategic reasons for not introducing additional mitigating evidence; however, we may not speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 814. Additionally, the record does not indicate whether other mitigating witnesses, including a mental health expert, were available to testify, or that their testimony would have been favorable to appellant. Appellant does not cite us any evidence illustrating that favorable mitigating evidence actually existed. See Bone v. State, 77 S.W.3d 828, 836-37 (Tex. Crim. App. 2002).
We also cannot say that counsel=s supposed failure to request a psychiatric examination and to call a psychiatrist and other mitigating witnesses affected the outcome. The record does not reflect what such an expert=s testimony would have been. Thus, we are unable to determine if any failure to employ such an expert or other mitigating witnesses would have made a difference in appellant=s determination to plead guilty. Although appellant insists that he was promised probation by trial counsel and he would not have pleaded guilty otherwise, appellant acknowledged that he understood the range of punishment was 5 to 99 years in prison, that he had the right to proceed to trial before a jury, and that it was his decision alone to forego a jury trial. Holding trial counsel ineffective based on this record would require us to speculate, which we decline to do. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.CHouston [1st Dist.] 1996, no pet). We overrule appellant=s first issue.
MOTION FOR NEW TRIAL
In his second issue, appellant contends that the trial court erred in denying his motion for new trial based on ineffective assistance of counsel at punishment. Where, as here, a motion for new trial 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. Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d). As discussed supra, the record before us does not support appellant=s ineffective assistance of counsel complaint. We overrule appellant=s second issue.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed May 29, 2008.
Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Hudson.*
Do Not Publish C Tex. R. App. P. 47.2(b).
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* Senior Justice J. Harvey Hudson sitting by assignment.