COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00064-CR
KHYREE CARSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-0376-F
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury found appellant Khyree Carson guilty of the offense of burglary of a
habitation. See Tex. Penal Code Ann. § 30.02 (West 2011). Carson pleaded
true to an enhancement paragraph, the jury assessed his punishment at thirteen
years’ confinement, and the trial court sentenced him accordingly. Carson
1
See Tex. R. App. P. 47.4.
perfected this appeal; he raises one issue claiming ineffective assistance of
counsel.
II. INEFFECTIVE ASSISTANCE OF COUNSEL NOT ESTABLISHED
Carson argues that he was denied effective assistance of counsel because
his trial counsel failed to request an “Alford2 hearing” and failed to subpoena a
witness.
A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,
307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be “firmly
founded in the record,” and “the record must affirmatively demonstrate” the
meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
2
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
2
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel
“should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not
given that opportunity, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
B. Ineffectiveness Not Raised in Motion for New Trial
Although Carson filed a motion for new trial, he did not complain of
ineffective assistance in his motion. No hearing was held on the motion, and it
was overruled by operation of law. See Tex. R. App. P. 21.8(c). Consequently,
any trial strategy that Carson’s trial counsel may have had for her challenged
actions is not contained in the record. Generally, a silent record that provides no
3
explanation for counsel’s actions will not overcome the strong presumption of
reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.
App. 2003). As noted above, trial counsel “should ordinarily be afforded an
opportunity to explain [her] actions before being denounced as ineffective.”
Menefield, 363 S.W.3d at 593.
C. Trial Counsel Was Not Ineffective for Failing
to Request an “Alford Hearing”
Carson reached a plea agreement with the State and executed the
necessary paperwork. At the plea hearing, however, after the trial court had
admonished Carson of his rights, explained Carson’s waiver of those rights, and
confirmed that Carson had read through and signed the plea paperwork, the
following colloquy occurred:
THE COURT: Are you pleading guilty because you are, in fact,
guilty, and for no other reason?
THE DEFENDANT: No, sir.
THE COURT: I’m sorry?
THE DEFENDANT: No, sir. I’m just pleading guilty so I can go on
and serve my time, sir.
THE COURT: So you’re not guilty of the offense?
THE DEFENDANT: No, sir.
THE COURT: Okay. We’ll see you for trial next Monday, okay?
THE DEFENDANT: All right.
THE COURT: Sir, you are ordered to appear on Monday a week
from today for trial. The last thing I’m ever going to do is take a plea
4
from someone that says they’re not guilty. That would be violating
my oath, and it is a travesty of the justice system to lock people up
when they’re not guilty of what they’re accused of having done.
THE DEFENDANT: Yes, sir.
THE COURT: So I’m not sure how we got to this point, but
sometimes people just change their minds at the last minute.
Whatever the case may be, we’re not going to proceed with the plea
today, and you are free to go. We will see you next Monday.
Carson argues that when the trial court rejected his plea at the plea
hearing, his trial counsel “should have recognized that holding an Alford hearing
was in the client’s best interest” and should have “requested a hearing so that the
State could present the evidence it intended to introduce at trial regarding the
Defendant’s guilt so the trial court could fulfill its proper function to determine that
Defendant’s plea was being entered intelligently, knowingly, and voluntarily
despite Defendant’s assertions of innocence.”
In Alford, the defendant pleaded guilty to second-degree murder pursuant
to a plea agreement so that he could avoid being tried for first-degree murder
and facing the death penalty. 400 U.S. at 28–29, 91 S. Ct. at 162–63. Before
the trial court finally accepted Alford’s plea, the court heard the sworn testimony
of a police officer who summarized the State’s case, heard the testimony of two
other witnesses, and heard the testimony of Alford. Id. at 28, 91 S. Ct. at 162.
Although Alford testified he had not committed the murder and was pleading
guilty to avoid facing the death penalty, the testimony from the witnesses was
that Alford took his gun from his house, stated his intention to kill the victim, and
5
returned home with the declaration that he had carried out the killing. Id. at 28,
91 S. Ct. at 162. After Alford denied his guilt on the witness stand and before
accepting the plea bargain, the trial court inquired whether Alford still wanted to
plead guilty. Id. at 28–29, 91 S. Ct. at 162–63. Alford said, “Yes, sir.” Id. at 29,
91 S. Ct. at 163.
After his conviction for second-degree murder, Alford sought habeas
corpus relief, claiming his guilty plea was coerced. Id., 91 S. Ct. at 163. The
Supreme Court explained,
If Alford’s statements were to be credited as sincere
assertions of his innocence, there obviously existed a factual and
legal dispute between him and the State. Without more, it might be
argued that the conviction entered on his guilty plea was invalid,
since his assertion of innocence negatived any admission of guilt.
Id. at 32, 91 S. Ct. at 165. But because the trial court had heard an account of
the events occurring on the night of the murder, including from Alford’s
acquaintances that Alford had departed from his home with his gun stating his
intention to kill and that he had later declared that he had carried out his
intention, and because Alford never wavered in his desire to plead guilty, the
Supreme Court compared Alford’s plea and circumstances to a plea of nolo
contendere. Id. at 36, 91 S. Ct. at 167. Because (as in a plea of nolo
contendere) the Constitution does not bar imposition of a prison sentence upon
an accused who is unwilling to expressly admit his guilt, but who, faced with grim
alternatives, is willing to waive his trial and accept the sentence, the Supreme
Court likewise held that under the facts presented to the trial court in Alford’s
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case, an express admission of guilt was not a constitutional requisite to the
imposition of criminal penalty on Alford and that Alford’s guilty plea was therefore
not involuntarily made despite his professed belief in his innocence. Id. at 38, 91
S. Ct. at 168.
Trial judges possess broad discretion to refuse a plea even when there is a
plea agreement between the State and the defendant. See Tex. Code Crim.
Proc. Ann. art. 26.13(a)(2) (West Supp. 2015); Rodriguez v. State, 470 S.W.3d
823, 828 (Tex. Crim. App. 2015); Roberts v. State, No. 03-96-00481-CR, 1998
WL 10276, at *1 (Tex. App.—Austin Jan. 15, 1998, pet. ref’d) (not designated for
publication) (recognizing “trial court has absolute discretion in every case to
reject a plea bargain agreement entered into between the state and the
defense”). And a trial court acts within its discretion in rejecting a plea
agreement when a defendant claims he did not commit the offense. See Allen v.
State, 827 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding
trial court did not abuse its discretion by rejecting plea agreement when during
plea hearing defendant testified that he did not remember committing the
offense); see also Roberts, 1998 WL 10276, at *1 (holding trial court did not
abuse its discretion by rejecting plea agreement when defendant vacillated in his
admission of guilt to the offense).
Carson claimed he did not commit the offense of burglary of a habitation.
Accordingly, the trial court acted within its discretion in rejecting his plea
agreement. See Allen, 827 S.W.2d at 70; see also Roberts, 1998 WL 10276, at
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*1. And because the trial court here rejected Carson’s guilty plea after Carson
claimed he did not commit the offense—as opposed to in Alford where the trial
court accepted Alford’s guilty plea despite his proclamations that he did not
commit the offense—the holdings of Alford are inapplicable here. An
examination of whether Carson made an intelligent, knowing, and voluntary plea
of guilty is not necessary because the trial court rejected Carson’s plea of guilty
and Carson was found guilty by a jury after a trial. Consequently, we hold that
Carson’s trial counsel’s failure to request an “Alford hearing” was not
unreasonable under the circumstances, nor did it fall below prevailing
professional norms at the time of the alleged error. See Strickland, 466 U.S. at
688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. We overrule this portion
of Carson’s issue.
D. Trial Counsel Was Not Ineffective for Failing to Subpoena Witness
In the remainder of Carson’s sole issue, he argues that his trial counsel
was ineffective for failing to subpoena Detective Airaghi. Detective Airaghi
investigated the offense and interviewed the complainant two days after the
incident. The State gave notice to the Dallas Police Department3 for Detective
Airaghi to appear in court but did not call him to testify, and any report he may
have made was not admitted into evidence.
3
The trial court noted that it was common practice for the State to send
notice to the police department for an officer to appear in court rather than
subpoena a police officer.
8
A claim of ineffectiveness based upon trial counsel’s failure to call a
particular witness cannot succeed absent a showing that the witness was
available to testify and that his testimony would have been of some benefit to the
defense. See Ex parte Ramirez v. State, 280 S.W.3d 848, 853 (Tex. Crim. App.
2007). Similarly, trial counsel's failure to present certain evidence is immaterial
absent a showing that the evidence was available and that the evidence would
have affected the outcome of the proceeding. See King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983).
Here, Carson’s trial counsel did not intend to call Detective Airaghi to
testify until after hearing the complainant’s testimony. When trial counsel notified
the trial court on the second day of the three-day trial that she wanted to call
Detective Airaghi to testify, the trial court recessed the court at 2:55 p.m. on
February 3, 2015, and offered to authorize payment for a private investigator to
assist trial counsel with locating and serving a subpoena on Detective Airaghi.
The following morning, an investigator for the District Attorney’s office and
Carson’s trial counsel testified that Detective Airaghi was not available to testify
because he had been on medical leave for all of January 2015 and would not
return to work until February 11, 2015. And although Carson hoped to use
9
Detective Airaghi’s testimony to impeach the complainant’s testimony,4 the record
contains no evidence as to what Detective Airaghi’s testimony would have been.
Because Carson has not shown that Detective Airaghi was available to
testify or that Detective Airaghi’s testimony would have been favorable to the
defense, Carson has not demonstrated that his trial counsel was ineffective for
failing to subpoena Detective Airaghi. See Ramirez, 280 S.W.3d at 853 (holding
that applicant had failed to show that his trial attorney was ineffective for failing to
call a witness because applicant failed to show that witness was available to
testify or that her testimony would have been favorable to applicant’s case); cf.
Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (holding that trial
court did not err by denying hearing on motion for new trial regarding alleged
ineffective assistance in failing to investigate and subpoena witnesses because
appellant’s affidavit did not state what the witnesses’ testimony would have been
and stated only that the witnesses “could have provided crucial exculpatory
information”). Based on the record before us, in light of the strong presumption
of reasonable professional assistance by trial counsel, and in the absence of any
opportunity for trial counsel to explain her strategy for not subpoenaing Detective
Airaghi, we cannot say that Carson has met his burden of showing by a
preponderance of the evidence that his trial counsel’s representation fell below
4
Trial counsel stated that Detective Airaghi’s testimony was “just for
impeachment purposes of the complainant. It’s not really substantive in the
sense that it’s not going to make any difference as to Mr. Carson’s position.”
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the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813.
We therefore overrule the remainder of Carson’s sole issue.5
III. CONCLUSION
Having overruled Carson’s sole issue, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
SUDDERTH, J., filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 4, 2016
5
Because Carson has not satisfied the deficient-performance prong of
Strickland, we need not address the prejudice prong. 466 U.S. at 697, 104 S. Ct.
at 2069 (stating that there is no requirement that a court approach the two-
pronged inquiry in any particular order or even address both components of the
inquiry if the defendant makes an insufficient showing on one component).
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