Sandra Jones Brown v. State

11th Court of Appeals Eastland, Texas Opinion Sandra Jones Brown Appellant Vs. No.11-03-00137-CR – Appeal from Dallas County State of Texas Appellee The jury convicted Sandra Jones Brown of criminal mischief, a Class B misdemeanor. TEX. PENAL CODE ANN. § 28.03 (Vernon Supp. 2004). The trial court assessed appellant’s punishment at 90 days confinement in the Dallas County Jail and ordered her to pay a fine of $500. The trial court suspended the imposition of the sentence and placed appellant on community supervision for one year. In two points of error, appellant complains that the trial court erred in denying her motion for new trial. Specifically, appellant argues that she was entitled to a new trial because (1) she discovered new evidence after her trial and (2) she received ineffective assistance of counsel at trial. We find that the trial court did not abuse its discretion in denying appellant’s motion for new trial; and, therefore, we affirm the judgment of the trial court. Background Facts The information charged appellant with damaging Gloria Nichols’s car windshield, without Nichols’s consent, in an amount of at least $50 but less than $500. The trial court appointed counsel to represent appellant during the trial proceedings. The Trial The State presented three witnesses at trial: (1) Nichols; (2) James English, Jr.; and (3) Dallas Police Officer Shameka King. Appellant testified on her own behalf. Nichols and English testified that they were in their apartment on September 6, 2002, when, at about 3:00 a.m., they heard Nichols’s car alarm go off. Nichols’s car was parked in the parking lot of the apartment complex. English said that he went outside when he heard the alarm. He said that he saw appellant break Nichols’s windshield with a piece of iron. He said that he yelled to Nichols: “Hey. That lady hit your car.” He said that Nichols called appellant’s name. English said that appellant got into a car that had been parked on the side of the street and then drove around the corner. English said that appellant drove back around the corner, looked at him, and smiled at him before she left the scene. Nichols said that she went outside when she heard English yell: “That lady, that lady, she’s breaking your window.” Nichols said that she saw appellant run away from Nichols’s car. She said that appellant got into a car that was parked across the street and then drove off. Nichols said that she called the police. Officer King arrived at the scene. She testified that Nichols’s windshield was broken. She said that Nichols told her that appellant had damaged the windshield. Officer King said that Nichols gave her appellant’s address. Appellant testified that she was in bed at the time of the incident. She said that she did not drive at night because she could not see well at night. She also stated that she could not run because of her physical condition. She said that she has two ruptured disks in her back and that she has arthritis. She denied she damaged Nichols’s windshield. Appellant’s Motion for New Trial Appellant moved for a new trial on the grounds of newly discovered evidence and that she received ineffective assistance of counsel at trial. For the newly discovered evidence claim, appellant asserted that she had located a witness, Rufus Hamilton, after the trial. Appellant stated that Nichols had told Hamilton that a lady named Gloria may have broken her windshield. Appellant contended that Nichols’s statement to Hamilton established that Nichols and English lied at trial when they testified that they saw appellant at the scene of the crime. Appellant contended that her trial counsel rendered ineffective assistance in the following respects: (1) in failing to properly investigate the case; (2) in failing to call available witnesses on appellant’s behalf; and (3) in failing to impeach Nichols’s credibility. Hearing on Appellant’s Motion for New Trial Appellant presented seven witnesses at the hearing: (1) her trial counsel; (2) Ira Junior Hall; (3) Donald Clark; (4) Katrina LaShonda Brown; (5) Kelwynn Brown; (6) Rufus Aaron Hamilton; and (7) appellant. Appellant’s trial counsel testified about his investigation in the case. He said that he talked with appellant about the case on the day of the announcement setting. He said that he obtained information from appellant in a trial information sheet, including the names of three potential witnesses and appellant’s version of the facts relating to the incident. The witnesses listed by appellant did not have personal knowledge of the incident in which Nichols’s windshield was broken. Appellant’s trial counsel said that he reviewed the documents in the prosecutor’s file. He said that he obtained the criminal records of potential witnesses, including English, Hall, and appellant. He discovered that appellant had prior felony convictions, including a conviction for aggravated kidnapping and convictions for theft. Appellant’s trial counsel also talked with appellant on the phone during the weekend before the trial and interviewed Hall on the morning of the trial. Appellant’s trial counsel testified that he did not go to the scene of the crime to investigate. Appellant’s trial counsel testified that he decided not to call character witnesses to testify on appellant’s behalf at trial. He said that appellant’s convictions were “stale” and, therefore, that the convictions were not admissible for impeachment purposes during the State’s cross-examination of appellant. However, he said that, if he had called character witnesses to testify on appellant’s behalf, then the State could have introduced appellant’s convictions to impeach the testimony of the character witnesses. Therefore, he decided not to call character witnesses on appellant’s behalf. Appellant’s trial counsel also testified about his decision not to call Hall – appellant’s neighbor – as a witness. He said that he discussed the case with Hall on the morning of the trial. In his opinion, Hall would not be a good witness on behalf of appellant. He stated that Hall would not present well as a witness and could not provide a strong alibi for appellant. Appellant’s trial counsel also said that Hall was a convicted felon and, therefore, subject to impeachment and that he did not want to call a convicted felon to testify on appellant’s behalf. Appellant’s trial counsel also testified about the failure to introduce evidence impeaching Nichols’s character and reputation. He did not believe that presenting testimony to the effect that Nichols is a liar would have affected the outcome of the trial. Hall testified that he lives in a one-room house right behind appellant’s house. He said that appellant does not drive at night. He also said that he would have heard appellant’s car if she had started it on the occasion in question. Clark testified that Nichols told him that appellant had knocked all of the windows out of Nichols’s car. Clark admitted that he was a convicted felon. Katrina and Kelwynn Brown were two of appellant’s children. They testified that they knew about appellant’s character for truthfulness and Nichols’s character for untruthfulness. They also testified that appellant could not run because of her physical condition and that appellant does not drive at night because of eye problems. Hamilton testified that, at the time of the incident, he lived next door to Nichols. He said that Nichols told him that she did not know who had broken her window. He also said that Nichols told him that she thought either appellant or a lady named Gloria had broken the window. Appellant testified that she found out about Nichols’s statement to Hamilton when she located Hamilton after trial. Newly Discovered Evidence TEX. CODE CRIM. PRO. ANN. art. 40.001 (Vernon Supp. 2004) provides that an accused is entitled to a new trial when material evidence favorable to the accused has been discovered since trial. Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex.Cr.App.1987). The trial court is the trier of fact at a hearing on a motion for new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Cr.App.1995). We review a trial court’s decision to grant or deny a motion for new trial under an abuse of discretion standard. Keeter v. State, 74 S.W.3d 31, 37 (Tex.Cr.App.2002); Lewis v. State, supra; Drew v. State, supra at 226. A trial court does not abuse its discretion in denying a motion for new trial based on newly discovered evidence unless the record demonstrates each of the following requirements: (1) that the newly discovered evidence was unknown to the movant at the time of trial; (2) that the movant’s failure to discover or obtain the evidence was not due to lack of diligence; (3) that the new evidence is probably true and its materiality is such as will probably bring about a different result upon a new trial; and (4) that the new evidence is competent and not merely cumulative, corroborative, collateral, or impeaching. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Cr.App.2003); Drew v. State, supra at 226; Etter v. State, 679 S.W.2d 511, 515 (Tex.Cr.App.1984). The trial court should consider both the credibility and the weight of the newly discovered evidence in determining whether the materiality test has been met. Jones v. State, 711 S.W.2d 35, 36-37 n.3 (Tex.Cr.App.1986); Wortham v. State, 903 S.W.2d 897, 899 (Tex.App. – Beaumont 1995, pet’n ref’d). Appellant contends that Hamilton’s testimony – that Nichols told him that either appellant or a lady named Gloria had broken her windshield – established that Nichols and English lied when they testified at trial that they saw appellant at the scene of the crime. Appellant argues that Hamilton’s testimony satisfied the materiality test for newly discovered evidence. The trial court had the task of determining the credibility of Hamilton’s testimony and the probability of the truthfulness of the testimony. Etter v. State, supra at 515; Ashcraft v. State, 918 S.W.2d 648, 653 (Tex.App. – Waco 1996, pet’n ref’d). At trial, Officer King testified that Nichols told her that appellant had damaged the windshield. Thus, the State presented evidence that Nichols identified appellant as the person who had broken the windshield immediately after the incident occurred. The State also presented English’s testimony that he saw appellant strike Nichols’s windshield. As the judge of the credibility of Hamilton’s testimony, the trial court could have reasonably concluded that Hamilton’s testimony was not of such weight that it would probably bring about a different result upon a new trial and, therefore, that Hamilton’s testimony did not meet the materiality test. Wortham v. State, supra at 899-900. Therefore, the trial court did not abuse its discretion in denying appellant a new trial on her newly discovered evidence theory. Appellant’s first point of error is overruled. Ineffective Assistance of Counsel We analyze appellant’s ineffective assistance of counsel claim under the test explained in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). To prevail on her claim, appellant must establish (1) that her trial counsel’s performance fell below an objective standard of reasonableness and (2) that a “reasonable probability” exists that the result of the proceeding would have been different but for her counsel’s deficient performance. Strickland v. Washington, supra; see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, supra at 55. The purpose of this two-pronged test is to determine whether counsel’s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999)(citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den’d, 508 U.S. 963 (1993)). The adequacy of defense counsel’s assistance is based upon the totality of the representation rather than by isolated acts or omissions. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App.1994), cert. den’d, 514 U.S. 1021 (1995). Our review of counsel’s representation is highly deferential, and we must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable representation. Tong v. State, 25 S.W.3d 707, 712 (Tex. Cr. App. 2000), cert. den’d, 532 U.S.1053 (2001). To defeat the presumption of reasonable representation, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, supra at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den’d, 519 U.S. 1119 (1997)). Appellant complains that her trial counsel provided ineffective assistance as follows: (1) by failing to perform an adequate investigation of the case; (2) by failing to locate and obtain witnesses, including Hamilton; (3) by failing to present evidence of appellant’s reputation for truthfulness; (4) by failing to present evidence of appellant’s physical problems; and (5) by failing to present evidence impeaching Nichols’s character. The record demonstrates that appellant’s trial counsel did a number of things to investigate the case. He talked with appellant about the case on the day of the announcement setting; he obtained the trial information sheet from appellant; he reviewed the documents in the prosecutor’s file; he obtained the criminal records of the witnesses; he talked with appellant on the telephone before the trial; and he interviewed Hall on the morning of trial. Appellant’s trial counsel testified as to his strategy in not calling (1) character witnesses to testify on appellant’s behalf and (2) Hall as a witness. He did not call character witnesses because he did not want the State to introduce appellant’s prior convictions into evidence. He believed that his decision not to call character witnesses enabled appellant to present her case to the jury without her prior convictions being introduced into evidence. He did not call Hall as a witness because he did not believe that Hall would make a good witness for appellant. His decision not to call Hall as a witness was based on his interview of Hall and the fact that Hall had prior felony convictions. Appellant’s trial counsel presented evidence at trial about appellant’s physical problems through appellant’s testimony. He also referred to appellant’s physical problems during closing argument. Appellant’s trial counsel testified at the hearing on appellant’s motion for new trial that neither Nichols, English, nor appellant were credible witnesses at trial. He did not believe that impeaching Nichols with evidence that she was a “liar” would have changed the outcome of the case. The record does not demonstrate – based on the totality of the representation – that appellant’s trial counsel’s performance fell below an objective standard of reasonableness. Appellant’s trial counsel investigated the case and, based on that investigation, developed a trial strategy that would prevent the State from using appellant’s prior convictions as impeachment evidence. The record demonstrates that appellant’s trial counsel made a number of decisions based on trial strategy, such as the decision not to call character witnesses on behalf of appellant and the decision not to call Hall as a witness. While appellant’s trial counsel could have presented (1) evidence corroborating appellant’s testimony about her physical problems and (2) evidence impeaching Nichols’s reputation for truthfulness, the record does not demonstrate that counsel’s failure to present such evidence fell below an objective standard of reasonableness. Appellant testified about her physical problems, and testimony from other witnesses about her physical problems would have been merely cumulative. The failure to locate Hamilton, standing alone, does not establish that appellant’s trial counsel’s investigation constituted ineffective assistance of counsel. Thus, the record does not establish that the performance of appellant’s trial counsel fell below the standard set forth in the first prong of the Strickland test. Even if appellant’s trial counsel should have performed some additional investigation or presented additional witnesses, the record does not demonstrate a “reasonable probability” that the result of the proceeding would have been different but for the deficient performance. Strickland v. Washington, supra; see Mallett v. State, supra at 62-63. Therefore, the record also does not satisfy the second prong of the Strickland test. Appellant’s second point of error is overruled. This Court’s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE June 24, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.