Sanders Marquise Anderson v. State

Opinion issued March 15, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00102-CR SANDERS MARQUISE ANDERSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1012885 MEMORANDUM OPINION Appellant, Sanders Marquise Anderson, pleaded guilty, with an agreed punishment recommendation, to an information charging robbery. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). The trial court deferred adjudication of guilt and placed appellant on community supervision for six years. The State later filed a motion to adjudicate guilt, alleging that appellant had violated the terms and conditions of community supervision by: (1) committing the offense of assault against April Franklin (his daughter's maternal aunt); (2) failing to report to his community supervision officer; (3) failing to be employed; (4) failing to submit a random urine sample; (5) failing to participate in 240 hours of community service; and (6) failing to write a letter of apology to the victim. Appellant pleaded true to allegations (3) and (5) and not true to allegations (1), (2), (4), and (6). In a unitary proceeding, the trial court found allegations (1), (2), (4), and (6) to be true, adjudicated appellant guilty of robbery, and assessed appellant's punishment at 12 years in prison. In his sole point of error, appellant contends his trial counsel rendered ineffective assistance during the punishment phase of the adjudication hearing by (1) failing to interview and secure the attendance of witnesses, (2) failing to adequately prepare for trial, and (3) failing to present mitigating evidence. Appellant's brief points to alleged evidence of ineffective assistance that relates to both the motion to adjudicate and to punishment. We affirm. Jurisdiction The State argues that this Court has no jurisdiction to hear the appeal because it contends appellant is attempting to appeal issues contained in the determination of his adjudication of guilt. We agree that appellant may not appeal the trial court's determination to proceed with an adjudication of guilt on the original charge. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006); Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005). However, we have jurisdiction to consider the merits of a claim that temporally arises before the act of adjudication if the claim directly and distinctly relates to punishment rather than to the decision to adjudicate. Hogans, 176 S.W.3d at 833-34. A defendant may raise on direct appeal a claim of ineffective assistance that allegedly occurred at the punishment proceeding. Id. at 833. The asserted error must directly and distinctly concern the punishment phase; the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate. Id. at 834. Appellant specifically claims that his counsel was ineffective because (1) counsel did not interview and subpoena two witnesses, Brian Bosley (appellant's brother-in-law) and Arielle Karaseiwicz (the mother of appellant's daughter) and (2) counsel did not present mitigating evidence on the "technical" violations of the terms of appellant's community supervision by eliciting further testimony from appellant or Retha Anderson (appellant's mother). Standard of Review The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying Strickland standard at punishment phase of noncapital trial). Appellant must show both that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different, i.e., the error or omission is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813. It is the defendant's burden to prove ineffective assistance of counsel by a preponderance of the evidence. Id. A "[d]efendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). We normally will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd); Gamble, 916 S.W.2d at 93. However, "in the rare case where the record on direct appeal is sufficient to prove that counsel's performance was deficient, an appellate court should obviously address the claim . . . ." Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). In Milburn, the Fourteenth Court of Appeals found that "failing to investigate and interview potential punishment witnesses, despite the availability and willingness," amounted to ineffective assistance. Milburn v. State, 15 S.W.3d 267, 269 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (citing Milburn v. State, 973 S.W.2d 337, 343 (Tex. App.--Houston [14th Dist.] 1998), vacated and remanded, 3 S.W.3d 918 (Tex. Crim. App. 1999)). However, there, in response to the State's offered evidence of appellant's bad character, trial counsel stated, "We're not going to put anything on." Milburn, 15 S.W.3d at 270. The court found this failure to offer mitigating evidence to be constructive denial of any defense, which demonstrated prejudice. Id. at 271. Moreover, the court determined that "a reasonable probability exist[ed] that appellant's sentence would have been less severe had the jury balanced the aggravating and mitigating circumstances." Id. Consequently, the Court concluded that "appellant . . . was actually and substantially prejudiced by his trial counsel's complete failure to search out and present any mitigating character evidence." Id. The Court of Criminal Appeals has held that failure to offer mitigating evidence at the punishment stage is not ineffective counsel when it is a strategic decision based on a "thorough and complete investigation of the facts and law at the time." Ex parte Kunkel, 852 S.W.2d 499, 506 (Tex. Crim. App. 1993). "Likewise, the United States Supreme Court has also held the failure to present mitigation evidence at punishment is not ineffective assistance when counsel made a reasonable decision to forego presentation of mitigating evidence after evaluating available testimony and determining that cross-examination would reveal matters prejudicial to the defendant, and opting instead to make a lesser culpability argument to the jury." Moore v. State, 983 S.W.2d 15, 23 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (citing Burger v. Kemp, 483 U.S. 776, 794-95, 107 S. Ct. 3114, 3126 (1987)). Discussion The overwhelming amount of testimony at the motion for new trial dealt with the effectiveness of counsel during the motion to adjudicate, which we may not review. Focusing exclusively on the allegation that counsel was ineffective in relation to the punishment proceedings, appellant's only relevant argument is that counsel should have elicited further testimony to mitigate the punishment. Counsel testified at the hearing on the motion for new trial that he had a reason for not eliciting that testimony from other witnesses: I didn't want to put on character witnesses because I was afraid that they would -- the State would start bringing up his previous misdemeanor priors, his misdemeanor priors for terroristic threat, failure to I.D. to a police officer, that he was on deferred for possession of marijuana before and had been revoked, and that he had another possession case. I didn't want to get into any of that. Counsel also stated that he did not want to call Brian Bosley as a witness concerning the assault against April Franklin because "I thought a lot of what Mr. Bosley was going to testify would conflict, in some areas rather drastically, to what [appellant] said." The remaining witnesses who appellant argues should have testified concerning punishment were Arielle Karaseiwicz and Retha Anderson. At the motion for new trial, Karaseiwicz stated she would have presented evidence concerning appellant's assault on her sister, April Franklin, and asked the trial judge to reinstate appellant's deferred adjudication. Retha Anderson testified at the motion for new trial concerning (1) appellant's depression after he could no longer play football due to back problems, (2) appellant's strained relationship with Arielle Karaseiwicz and April Franklin's family, (3) appellant's reasons for not complying with certain provisions of his community supervision, and (4) appellant's general character. We cannot consider testimony concerning the adjudication based on the assault, and counsel testified that he made the strategic decision not to call further witness out of concern that the State might decide to prove up appellant's prior convictions. Based on the record, appellant has not overcome the presumption that counsel's actions might be considered sound trial strategy. See Gamble, 916 S.W.2d at 93. We overrule point of error one. Conclusion We affirm the judgment of the trial court. Sam Nuchia Justice Panel consists of Justices Nuchia, Keyes, and Higley. Do not publish. Tex. R. App. P. 47.2(b).