Snare, Anthony Dean v. State

.Si . .. & Qlcurt at Appeals mutf Etsirtri of ®exns at lallas JUDGMENT ANTHONY DEAN SNARE, Appellant Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. No. 05-95-01268-CR F94-60039-TI). Opinion delivered by Justice Chapman, THE STATE OF TEXAS, Appellee Justices Morris and Hankinson participating. Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 28, 1997. RON CHAPMAN JUSTICE AFFIRM and Opinion Filed February 28, 1997 In The (Uimrt of Appeals iTtftlr Itsirtrt of Gkxas at lallas No. 05-95-01268-CR ANTHONY DEAN SNARE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F94-60039-TI OPINION Before Justices Chapman, Morris, and Hankinson Opinion By Justice Chapman Appellant appeals his jury conviction for aggravated robbery. The jury assessed punishment, enhanced by two prior felony convictions, at fifty years' confinement. In his sole point of error, appellant contends he received ineffective assistance of counsel. We affirm. Appellant contends his trial counsel was ineffective and that counsel's ineffectiveness V caused the jury to assess a greater sentence. Appellant complains of errors during voir dire and errors during punishment. The proper standard of review to measure counsel's ineffectiveness during voir dire is that set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Chambers v. State, 903 S.W.2d 21, 36 (Tex. Crim. App. 1995). Under this standard, an appellant must first establish that his counsel's representation fell below an objective standard of reasonableness. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The appellant must then show a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. Jackson, 877 S.W.2d at 771; Hernandez, 726 S.W.2d at 55. The proper standard to review counsel's performance during punishment, however, is the standard set forth in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). See Ex parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990). We determine whether counsel was reasonably likely to render effective assistance and whether counsel actually rendered reasonably effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992). Several considerations are applicable to both standards. Under either standard, we view the totality of counsel's representation and do not judge counsel's performance in hindsight. Exparte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Davis v. State, 831 S.W.2d 839, 843 (Tex. App.--Dallas 1992, pet. ref'd); Ybarra v. State, 890 S.W.2d 98, 111 (Tex. App.--San Antonio 1994, pet. ref'd). Both standards require the appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). Further, the record must support a claim of ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984), cert, denied, 474 U.S. 865 (1985). Finally, we are not permitted to inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.-Dallas 1994, no pet.). Appellant pleaded not guilty to aggravated robbery. After hearing evidence on guilt-innocence, the juryfound appellant guilty of the offense. Appellant testified at punishment and admitted he committed the offense. The jury assessed punishment at fifty years' confinement. Appellant contends counsel was ineffective during voir dire because counsel questioned the venire on issues concerning guilt-innocence. Specifically, counsel asked questions concerning the credibility of police officers and the burden of proof. According to appellant, these questions would alienate the jury because he was "obviously guilty" and would admit he was guilty in the punishment phase. Appellant asks that we judge counsel's performance in hindsight, which we are not permitted to do. See Felton, 815 S.W.2d at 735. Further, appellant chose to plead not guilty and have the jury determine guilt-innocence. We cannot, therefore, conclude counsel was ineffective for questioning the venire on issues concerning guilt-innocence. -3- Appellant next complains that his trial attorney did not question the venire on punishment issues. The trial court did, however, question the venire concerning theirability to consider the full range of punishment. Thereafter, the trial court granted five of counsel's strikes for cause against venirepersons who could not consider the minimum punishment. Appellant nevertheless maintains counsel should have argued issues which the venire might consider in mitigation of punishment. The record, however, is silent with respect to counsel's reasons for not questioning the venire on mitigation issues. See Jackson v. State, 877 S.W.2d at 771. We cannot conclude there is no plausible basis for counsel's actions.1 See Weeks, 894 S.W.2d at 392. Appellant also asserts that reasonably effectivecounselwould have pleaded him guilty before the jury. However, the decision to plead guilty or not guilty is the personal decision of the accused. Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985); Ramer v. State, 714 S.W.2d 44, 46 (Tex. App.-Dallas, pet. ref'd). Appellant has neither asserted, nor shown, that counsel advised him to plead not guilty. Finally, appellant contends counsel was ineffective for failing to investigate the facts and failing to interview witnesses. He asserts counsel failed to discover appellant had a drug problem and a difficult childhood. The record is silent with respect to counsel's preparation for trial. The record likewise does not show counsel was not aware that appellant used Counsel may, for example, have decided not to question the venire on mitigation issues to avoid any suggestion that counsel believed his client was guilty. -4- ^°f^iS»i^:'^>#:«*^:-*i'S' drugs and had a difficult childhood. Evidence was, in fact, presented at punishment showing that appellant's fatherwas "tyrannical" and that appellant used drugs. Although counsel did not focus on this evidence, counsel's punishment argument shows it was her strategy to stress that appellant had admitted his guilt and did not make excuses for his actions. We conclude appellant has not met his burden to show counsel was ineffective. See Runnels v. State, 860 S.W.2d 545, 547 (Tex. App.-Beaumont 1993, pet. ref'd). Accordingly, we overrule appellant's sole point of error and affirm the trial court's judgment. RON CHAPMAN JUSTICE Do Not Publish Tex. R. App. P. 90 951268F.U05 -5- Chief Justice Linda Thomas David Pagan Justices business administrator Sue Lagarde (214) 712-3434 Ed Kinkeade John Ovard Frances Maloney Lisa Rombok Ron Chapman (£aurt of Appeals clerk of the court Joseph B. Morris (214) 712-3450 Mark Whittington Wxftlj Itstrtrt of Okxas at Satlas Tom James George L. Allen Sr. Courts Building Carolyn Wright Facsimile 600 Commerce Street Deborah G. Hankinson (214) 745-1083 Dallas, Texas 75202-4658 Jim Moseley David Bridges (214) 712-3400 May 22,1997 R. D. Rucker Attorney at Law P.O. Box 222167 Dallas, TX 75222-2167 April E. Smith Assistant District Attorney Frank Crowley Courts Building 133 North Industrial Blvd., LB-19 Dallas, TX 75207 RE: Court of Appeals Number: 05-95-01268-CR Trial Court Case Number: F94-60039-TI Style: Snare, Anthony Dean v. The State of Texas Dear Counsel: Pursuant to Rule 86 of the Texas Rules of Appellate Procedure, this Court has this day issued a Mandate in accordance with the Judgment and delivered it to the Clerk of the Trial Court. Respectfully Yours, Lisa Rombok Clerk of the Court Stephanie Hughes