Steven Robert Miller v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-02-00149-CR Steven Robert Miller, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 52,045, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING M E M O R A N D U M O P I N I O N After a jury found appellant Steven Robert Miller guilty of aggravated sexual assault, the district court assessed punishment at imprisonment for life. See Tex. Pen. Code Ann. § 22.021 (West Supp. 2003). In two points of error, he claims he did not receive effective assistance of counsel. We will affirm. The complaining witness testified that when she was ten years old, appellant tied her to a bed, placed duct tape over her mouth, and inserted a bullet into her rectum. He did this on two different occasions. The complainant's sister, who was two years older, testified that appellant did the same things to her. At the punishment stage, it was shown that appellant also sexually assaulted his thirteen-year-old half-brother. Appellant contends his trial counsel was ineffective in two respects. First, he complains that counsel failed to properly object or to request a mistrial when, during the guilt stage, a State witness referred to the assault of appellant's brother. Second, he complains that counsel failed to request a hearing to test the reliability of the outcry statements, that he failed to object to outcry testimony outside the scope of the State's pretrial notice, and that he failed to object to the State calling more than one outcry witness for the same offense. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2003). To prevail on his ineffectiveness claim, appellant must show by a preponderance of the evidence that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). In determining whether appellant has satisfied the first element of the test, we decide whether the record establishes that counsel failed to provide reasonably effective assistance. Strickland, 466 U.S. at 687-88; Hernandez, 726 S.W.2d at 55; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Appellant must demonstrate that counsel's performance was unreasonable under the prevailing professional norms and that the challenged actions were not sound trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). We do not evaluate the effectiveness of counsel in hindsight, but from counsel's perspective at trial. Strickland, 466 U.S. at 689; Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993); Stafford, 813 S.W.2d at 506. We assess the totality of the representation, rather than isolated acts or omissions. Wilkerson, 726 S.W.2d at 548. The record shows that counsel had been notified by the State and was fully aware of all the acts of sexual misconduct committed by appellant. The record does not reveal counsel's trial strategy with regard to this evidence, or explain why counsel made the specific acts or omissions of which appellant now complains. Under the circumstances, appellant cannot in this direct appeal overcome the strong presumption that his counsel's actions were the result of considered trial strategy that was reasonable from counsel's perspective at trial. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Oestrick v. State, 939 S.W.2d 232, 237 (Tex. App.--Austin 1997, pet. ref'd); Bohnet v. State, 938 S.W.2d 532, 536 (Tex. App.--Austin 1997, pet. ref'd) (citing Strickland, 466 U.S. at 689). Trial strategy may constitute ineffective assistance only if the record demonstrates that counsel's acts or omissions were without any plausible basis. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992). A conscious and informed decision on trial strategy cannot be the basis for an ineffective assistance claim unless it is so ill-chosen that it permeates the trial with obvious unfairness. The bare trial record here does not reveal ineffectiveness of counsel sufficient to sustain such a claim. After reviewing the trial record, we hold that appellant has failed to establish that his counsel's performance was deficient. There is nothing in the record to overcome the strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. We overrule both points of error. The judgment of conviction is affirmed. Lee Yeakel, Justice Before Justices Kidd, B. A. Smith and Yeakel Affirmed Filed: January 16, 2003 Do Not Publish