Affirmed and Memorandum Opinion filed October 15, 2009
In The
Fourteenth Court of Appeals
NO. 14-08-00522-CR
Charles Edward Vaughn, Appellant
v.
The State of Texas, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1093573
MEMORANDUM OPINION
Charles Edward Vaughn was convicted of the first-degree offense of felony murder and sentenced to thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Vaughn challenges his conviction on the grounds that he was denied the effective assistance of counsel, and that the trial court erroneously denied his motion for new trial. We affirm.
I
Early in the morning on November 19, 2006, two Webster Police Department (“WPD”) officers, Ryan Sprinkle and Jeff Lester, received a call about a “suspicious” person dropping a weapon into some bushes in a residential neighborhood. After finding a handgun in the bushes, the officers located a residence where shots had been fired. While conducting a welfare check at that residence, officers noticed a trail of blood across the floor leading to a closet. The WPD officers could see human fingers under the closet door, and once Officer Lester opened the door, they discovered James McGill lying on his stomach. The officers called for back-up officers and a medic, who pronounced McGill dead due to a gunshot wound to the chest. Multiple officers testified that the residence was in “disarray” and “very trashy” because clothes, food, and trash were strewn everywhere.
Later that morning, Officer Jeff Cargile received a call about a bleeding man sitting in front of a donut shop. Officer Cargile testified that he found Charles Edward Vaughn in front of the donut shop, and he appeared to be intoxicated. Because of Vaughn’s incoherent state, Officer Cargile arrested him for public intoxication.
Officers testified that during a police interview, Vaughn admitted he was at McGill’s house, but he claimed the gun had accidentally discharged. Vaughn testified that he told the officers he and McGill were friends, but also admitted he was angry with McGill for burglarizing the residence of another friend. After hearing all the evidence, the jury convicted Vaughn of murder.
Vaughn filed a motion for new trial, contending that he received ineffective assistance of counsel. After hearing the evidence and arguments of counsel, the court denied the motion. This appeal followed.
II
A defendant has a right to counsel under both the United States Constitution and the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. § 1.05 (Vernon 2005). Included in the right to counsel is the right to have reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). We evaluate effective assistance of counsel under a two-prong test developed in Strickland v. Washington. Id. Under the Strickland test, a defendant must establish that (1) his counsel’s representation was deficient and below the standard of reasonableness, and (2) his counsel’s deficient performance prejudiced his defense. Id. at 687; Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). In reviewing a claim for ineffective assistance of counsel, a court must decide whether an attorney’s “acts or omissions were outside the wide range of professionally competent assistance” or may be considered reasonable trial strategy. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (quoting Strickland, 466 U.S. at 690). The burden is on the defendant to prove by a preponderance of the evidence that his counsel’s deficiency fell below prevailing professional norms. Id.; see also Rylander v. State, 101 S.W.3d 107, 109–10 (Tex. Crim. App. 2003).
We review the trial court’s denial of a motion for a new trial under an abuse-of-discretion standard. State v. Herndon, 215 S.W.3d 901, 906–07 (Tex. Crim. App. 2007); Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We do not substitute our judgment for the trial court’s judgment; rather, we determine whether the trial court’s decision was arbitrary or unreasonable. Holden, 201 S.W.3d at 763. A trial court abuses its discretion only when its decision is clearly wrong and “outside the zone of reasonable disagreement.” Freeman, 167 S.W.3d at 117; see also Holden, 201 S.W.3d at 763.
III
A
Vaughn contends his trial counsel failed to properly investigate his mental state and present that evidence to the jury. The State contends defense counsel’s conduct was reasonable; alternatively, even if it were not reasonable, Vaughn’s defense was not prejudiced.
In Wiggins v. Smith, the Supreme Court examined an attorney’s duty to investigate under its two-prong Strickland standard. 539 U.S. 510, 521–23 (2003). The Court concluded that there is a duty to make reasonable investigations, and “‘a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgment.’” Id. (quoting Strickland, 466 U.S. at 690–91); see also Ex parte Martinez, 195 S.W.3d 713, 721–72 (Tex. Crim. App. 2006). Counsel’s representation will be deficient, however, if a sufficient pre-trial investigation is not performed. Wiggins, 539 U.S. at 521; Freeman v. State, 167 S.W.3d 114, 117 (Tex. App.—Waco 2005, no pet.); see also Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“If counsel fails here to alert the court to the defendant’s mental state the fault is unlikely to be made up . . . and decreases the probability that counsel will deem it necessary to do further research in pursuit of a defense.”).
But counsel is not required to always investigate a defendant’s psychiatric history to meet the effective-assistance-of-counsel standard. See Purchase v. State, 84 S.W.3d 696, 700–01 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). Trial counsel is also not required to investigate every possible lead or piece of mitigating evidence, especially if it is not likely to positively aid the defendant. Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App. 2005); Freeman, 167 S.W.3d at 117. Traditionally, courts have given trial counsel “great latitude” in deciding what type of evidence to present for mitigation purposes. Mendoza v. State, Nos. 14-06-01015-CR, 14-06-01016-CR, 2008 WL 2403769, at *5 (Tex. App.—Houston [14th Dist.] June 12, 2008, pet. ref’d) (mem. op., not designated for publication). But a trial strategy cannot justify the failure to research and present the jury with mitigating evidence if counsel has first failed to properly investigate. Id. (citing Wiggins, 539 U.S. at 520). A court should review and defer to counsel’s trial strategy “in direct proportion to the amount and depth of counsel’s investigation.” Id. (citing Strickland, 466 U.S. at 690–91).[1]
At the hearing on the motion for new trial, Vaughn did not assert that he was seeking a defense of incompetency or insanity. He contends that trial counsel was ineffective only because she failed to properly investigate his psychiatric history, request a psychiatric evaluation, and present mitigating evidence and witnesses to testify to his mental state during both the guilt/innocence and punishment stages of his trial. Vaughn alleges this deficiency prejudiced his defense.
At the hearing, Vaughn called his sister, Deanne Simmons, to testify to his history of mental illnesses and problems. Simmons testified that Vaughn had been diagnosed as bipolar and was on medication for his depression and anxiety. Furthermore, Simmons produced e-mails that tracked the correspondence between her and Vaughn’s trial counsel. In her e-mails, she asked trial counsel about having a psychiatrist evaluate Vaughn, and she complained about Vaughn’s deteriorating mental state. Counsel responded that she would send a letter to the jail and request that Vaughn be evaluated. There is nothing in the record, however, that indicates Vaughn was in fact evaluated. Additionally, Simmons told trial counsel in an e-mail that Vaughn was receiving medical treatment through the Mental Health and Mental Retardation Authority. Vaughn also introduced medical records indicating that doctors had diagnosed him with anxiety, depression, and a bipolar disorder. The records chronicle more than thirty years of medical history including evidence that Vaughn sought psychiatric treatment and was on and off medication. Furthermore, Simmons testified at the punishment stage of the trial that Vaughn received disability checks for having mental disorders—depression and severe anxiety.
During the motion-for-new-trial hearing, the State introduced trial counsel’s sworn affidavit. In the affidavit, counsel states she knew Vaughn was suffering from depression and anxiety, but she was never informed about any other mental illness. She notes that Simmons had numerous opportunities to divulge Vaughn’s medical background, but she only discussed depression. Trial counsel presented mitigating evidence of depression during the punishment stage of Vaughn’s trial when Simmons testified. Simmons also testified about Vaughn’s anxiety disorder, alcohol problem, and his physical disabilities. Additionally, trial counsel consulted with a psychiatrist about the effects of combining alcohol and Vaughn’s depression medication. As a trial strategy, trial counsel did not introduce evidence of his alcohol or drug use “for fear that the jury would find Mr. Vaughn more dangerous because of voluntary substance abuse . . . .” She states that Vaughn was able to distinguish between right and wrong and, in their discussions, he was “always lucid, cogent, and well oriented.” Finally, trial counsel asserts that Vaughn never told her that he had a mental illness, nor was there any indication that he suffered from a mental disorder, aside from his depression and anxiety.
Assuming arguendo that trial counsel failed to properly investigate Vaughn’s mental state, we now turn to the second prong of the Strickland test—prejudice to Vaughn. To obtain a reversal, Vaughn must demonstrate with reasonable probability that but for trial counsel’s deficient investigation, the outcome would have been different. See Ex Parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009); Jackson v. State, 857 S.W.2d 678, 682–83 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). In evaluating the prejudice, we weigh “the evidence in aggravation against the totality of available mitigating evidence” in the entire record. Wiggins, 539 U.S. at 534. In conducting this assessment, courts often review the evidence presented during the motion-for-new-trial hearing to see if a proper investigation would have uncovered evidence that could have changed the outcome of the trial. See Freeman, 167 S.W.3d at 120; Conrad v. State, 77 S.W.3d 424, 426–27 (Tex. App.—Fort Worth 2002, pet. ref’d). Vaughn has not demonstrated that the outcome of his trial would have been different if trial counsel had more thoroughly investigated his mental state.
Vaughn repeatedly states that trial counsel should have asked a psychiatrist to evaluate him. He claims that with this evaluation, the jury might have found him guilty of manslaughter instead of murder, or the judge might have been more sympathetic during the punishment stage. But these claims are based on mere speculation. The record does not reflect what an evaluation would have shown. Vaughn cannot simply state that counsel was ineffective without highlighting the adverse effects on his defense. See Strickland, 466 U.S. at 693.
Vaughn relies on Freeman for the proposition that an evaluation was warranted, but in Freeman, a psychiatrist evaluated the appellant post-trial. Freeman, 167 S.W.3d at 118–19. During the motion-for-new-trial hearing, the psychiatrist testified that although Freeman was sane and competent, his medical history was relevant punishment evidence and should have been introduced. Id. at 119. Unlike Freeman, Vaughn did not submit any evidence at the motion-for-new-trial hearing that explains how potential mitigating evidence of his mental history would have changed the outcome of his trial. As trial counsel stated in her affidavit, “[t]here was never any indication that a disorder interfered with his ability to distinguish right from wrong or formulate an intent to act.” Additionally, mitigating evidence of his depressive mental state and anxiety disorder was introduced during the punishment stage of trial. Vaughn has failed to prove that trial counsel’s investigation prejudiced his defense so as to warrant a new trial. We conclude that Vaughn has not satisfied the second prong of Strickland. We therefore overrule Vaughn’s first issue.
B
Vaughn also asserts the trial court erred in denying his motion for new trial based on ineffective assistance of counsel. The State contends that Vaughn has failed to demonstrate that his counsel’s assistance was deficient; hence, the trial court correctly denied his motion for a new trial. Because we conclude that Vaughn did not meet the ineffective-assistance-of counsel test set out in Strickland, we hold the trial court did not abuse its discretion by denying Vaughn’s motion for a new trial. We therefore overrule Vaughn’s second issue.
* * *
For the foregoing reasons, we affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Seymore, Brown, and Sullivan.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] “[I]nformation that indicates mental or emotional injury, even if not sufficient to bar prosecution under an insanity plea or due to incompetence to stand trial, may be important to reduce culpability at sentencing, and it is hard to imagine such a tactical reason for not presenting such information.” Mendoza, 2008 WL 2403769 at *5 (citing Miller v. Dretke, 420 F.3d 356, 364 (5th Cir. 2005)).