Waris Nadir Sublet v. State

Opinion issued January 29, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00182-CR ——————————— WARIS NADIR SUBLET, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1378742

MEMORANDUM OPINION

A jury found Waris Nadir Sublet guilty of the offense of aggravated assault with a deadly weapon. After pleading true to a prior offense, Sublet was sentenced to thirty years’ confinement. On appeal, Sublet contends that he was deprived of *2 effective assistance of counsel when his counsel objected to a witness’s mention of plea negotiations but failed to request an instruction to disregard the testimony and move for a mistrial. We conclude that Sublet has failed to show a reasonable probability that counsel’s error affected the outcome of the proceedings; we therefore affirm.

Background

In October 2012, a man approached James Morris and Marshal Brock, who were homeless and living behind a building. Brock awoke when he heard footsteps and saw the man, who wore a jumpsuit, blue baggy pants, and a “scary movie mask.” The man slashed Morris, then Brock, several times with a machete. Brock sustained injuries to his arms, hands, and neck. Morris sustained severe injuries to his hands and a cut on his head and knee. All of the fingers on Morris’s left hand and one on his right hand had been severed. Officer Hutto, one of the police officers called to the scene, photographed several of the severed fingers and blood evidence.

On the following day, Officer Dorton stopped a van after the driver, Sublet, failed to stop at a stop sign. Dorton detained Sublet and the passenger of the van, towed the van, and conducted an inventory of it. A machete was located within the van. Officer Dorton did not see any injuries or cuts on Sublet when he detained him.

Officer Palatino, a crime scene investigator, searched for items within the van and took photographs of them. She collected blood from the driver’s side door panel. DNA analysis showed Brock was very likely to be the DNA contributor to blood on the door panel. The machete blade had red-brown stains on it. DNA analysis showed that Brock was very likely to be the major DNA contributor to DNA collected from the blade and handle. James Morris was likely to be the minor contributor to one of the blood stains.

Officer Hernandez, who investigated the assault, visited the apartment where Sublet resided sometimes, and received consent to search the apartment. Hernandez found shoes with dried blood on them, blue shorts with a small amount of blood on them, and camouflage coveralls.

Sublet confessed to the crime and claimed self–defense in a conversation with police officers, who had informed Sublet of his Miranda rights. The jury heard an audio recording of the conversation. In the recording, Sublet stated that, on the night of the crime, he approached Brock and James because they owed him money. Sublet stated that he was wearing a camouflage jumper, a “Jason” mask from the Friday, the 13th movies, and wore gloves so he would not get blood on himself. He confessed that he went to the shopping center intending to harm the victims. Sublet claimed that one of the victims had the machete and tried to attack him with it. He said one of the victims punched him, and then he grabbed the *4 machete from them and began to hit them. He stated that he did not remember everything because he was on PCP at the time. He recalled striking at the victims’ faces and admitted that he may have hit their fingers as they tried to shield their faces. Later in the conversation, Sublet stated that the victims were lying down on the concrete when he initially approached them.

During Sublet’s trial, the State proffered witness testimony from Adams, who testified about a conversation he had with Sublet while he and Sublet waited together in a police holdover room. Adams testified that Sublet confessed to him that he committed the aggravated assault.

The trial court instructed the jury on the issue of self–defense. The jury found Sublet guilty of aggravated assault with a deadly weapon.

Discussion

To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient; and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The first prong of this test requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness, in that counsel made such serious errors that he was not functioning effectively as counsel. Id. Thus, the defendant must prove *5 objectively, by a preponderance of the evidence, that his counsel’s representation fell below professional standards. Lopez, 343 S.W.3d at 142; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

The second prong requires the defendant to show a reasonable probability that, if not for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at 142. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)). In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel. Lopez, 343 S.W.3d at 142–43; Ex Parte Martinez, 330 S.W.3d 891, 903 (Tex. Crim. App. 2011). We consider whether the defendant has shown by a preponderance of the evidence that counsel’s actions “so compromised the proper functioning of the adversarial process that the trial court cannot be said to have produced a reliable result.” Martinez, 330 S.W.3d at 901 (citing Strickland, 466 U.S. at 686, 104 S. Ct. at 2064). The possibility that counsel’s deficiency might affect the proceedings is insufficient to show prejudice under Strickland: “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Kober v. State, 988 *6 S.W.2d 230, 232–33 (Tex. Crim. App. 1999) (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).

In Martinez, the Texas Court of Criminal Appeals considered a case in which the defendant, convicted of murder, claimed ineffective assistance of counsel under Strickland. 330 S.W.3d at 894, 901. The defendant contended that her counsel failed to object to gang-related evidence that was inadmissible. Id. at 901. The court found that, even without the gang-related evidence, the remaining evidence supported the jury’s guilty verdict. Id. The court found that “[i]t is unlikely, in the face of all the evidence with which the jury was presented, that the jury would have reached a different conclusion in the absence of the gang-related evidence. . . .” Id. at 904.

Sublet contends that his trial counsel was ineffective in responding to the following testimony by Adams:

Defendant’s counsel: And then you’re saying in the holdover right back there, he talked to you about the case?

Adams: Yes.

Defendant’s counsel: And now you’re saying that he just out of the blue admitted to you that he committed this crime?

Adams: No, actually, when you came back there and riled him up saying that he needs to take the plea bargain that the Prosecutor —

Defendant’s counsel: Objection, Your Honor.

The Court: Sustained. Listen carefully to [counsel’s] question and just answer the question that he asks.

Although counsel objected to Adams’s testimony, counsel did not request an instruction to the jury to disregard the testimony, nor did he move for a mistrial. Sublet contends that the testimony indicated to the jury that trial counsel believed Sublet was guilty, severely compromising his defense.

Even assuming that counsel erred in failing to pursue his objection by requesting an instruction to disregard the statement and move for a mistrial, Sublet fails to show that the outcome of the proceeding would have been different. The State proffered abundant evidence of Sublet’s guilt, including his recorded confession. DNA from bloodstains in Sublet’s car and from the machete found in his car was later identified as Brock and Morris’s, with a very small chance of error.

The record also contains evidence that severely undermines Sublet’s self– defense claim. In the recording provided to the jury, Sublet stated that on the night of the crime, he went in search of the victims, wearing a camouflage jumper and a “Jason” mask, intending to harm them. Sublet anticipated bloodshed, noting that he wore gloves so he would not get blood on himself. Although Sublet claimed that one of the victims had the machete and tried to attack him with it, he later admitted that the victims were lying down when he first approached them. He *8 recalled that the victims shielded their faces with their hands, as he attacked with the machete.

We hold that Sublet has failed to show a reasonable probability that, but for counsel’s actions, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at 142. Accordingly, we hold that Sublet has failed to satisfy the second prong of an ineffective assistance claim.

Conclusion

We hold that Sublet has not shown a reasonable probability that any error by his counsel affected the outcome of his trial. We therefore affirm the judgment of the trial court.

Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle. Do not publish. See TEX. R. APP. P. 47.2(b).