Andrew Westell v. State

Affirmed and Memorandum Opinion filed March 13, 2007 Affirmed and Memorandum Opinion filed March 13, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-05-00993-CR NO. 14-05-00994-CR NO. 14-05-00995-CR ____________ ANDREW WESTELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause Nos. 1010644, 1010645, 1018553 M E M O R A N D U M   O P I N I ON On original briefing, appellant Andrew Westell challenged his felony theft convictions alleging he received ineffective assistance of counsel. This court abated his appeals and remanded to the trial court for appointment of counsel and an opportunity to file a motion for new trial. On remand to the trial court, appellant filed a motion for new trial based on ineffective-assistance-of-counsel grounds and the trial court denied it. Concluding the trial court did not abuse its discretion in denying appellant=s motion for new trial, we affirm. I. Factual and Procedural Background Appellant was charged with two counts of felony theft in cause numbers 1010644 and 1010645, and one count of aggregate felony theft from an elderly person in cause number 1018553. On December 28, 2004, after trial counsel was appointed to represent him in these cases, appellant pled guilty to all three counts, without an agreed recommendation from the State as to punishment. The trial court ordered a pre-sentence investigation (APSI@) and, on September 16, 2005, conducted a sentencing hearing. The trial court found appellant guilty on all three counts and for each count sentenced him to nine years= confinement in the Institutional Division of the Texas Department of Criminal Justice. On the day appellant was sentenced, his appointed counsel filed a notice of appeal in all three cases and sought permission to withdraw from his representation of appellant. The trial court granted appointed counsel=s motion to withdraw that day, leaving appellant without representation. On October 17, 2005, appellant=s mother filed a declaration requesting that appellate counsel be appointed for her son.[1] No counsel was appointed in the trial court. In his appeal to this court, appellant voiced various complaints, including that the trial court should have appointed counsel to represent him after allowing his trial counsel to withdraw. On November 9, 2006, after the parties submitted appellate briefs, this court abated the appeals and remanded these cases to the trial court so that the trial court could appoint counsel and give appellant thirty days to file and present motions for new trial. See Andrew Westell v. The State of Texas, Nos. 14-05-00993-CR, 14-05-00994-CR, 14-05-00995-CR (Tex. App.CHouston [14th Dist.] Nov. 9, 2006) (order). On remand, appellant filed motions for new trial in these cases, contending that his counsel was ineffective in several respects. Following abatement and remand, the trial court denied appellant=s motion for new trial. II. Issues and Analysis At the heart of appellant=s challenge to his felony theft convictions is his contention that he was denied effective assistance of counsel during the guilt-innocence phase as well as the punishment phase of his trial.[2] Either in his appellate brief or in his motion for new trial, appellant has asserted that his trial counsel was deficient in the following respects: (1) failing to adequately confer with him before he entered his guilty plea; (2) failing to adequately prepare him to testify at sentencing;[3] (3) failing to interview defense witnesses to testify at sentencing; (4) failing to prepare defense witnesses to testify at sentencing; (5) failing to interview any of the potential witnesses who allegedly would have provided mitigation evidence at sentencing; (6) failing to adequately object to alleged deficiencies in the PSI report;[4] (7) failing to check the appropriate boxes in the notice-of-appeal form, thereby hindering him from properly filing a motion for new trial and making an adequate record for appeal.[5] According to appellant, his trial counsel=s allegedly deficient conduct caused him to enter involuntary pleas. Appellant argues that he would have been in a better position to make a fully informed decision on whether to plead guilty or take his cases to trial if his trial counsel had done a better job of communicating with him and investigating his cases. This failure, appellant argues, rendered his pleas unknowing and involuntary. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We review the trial court=s decision to deny appellant=s motion for new trial for an abuse of discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court=s decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling. Id. In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Absent an opportunity for trial counsel to explain his actions, appellate courts should not find ineffective assistance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). A. Did the trial court abuse its discretion in denying appellant=s motion for new trial on his claim that his trial counsel was ineffective for failing to adequately confer with appellant before appellant entered his guilty pleas? In his first claim for ineffective assistance of counsel, appellant contends that his counsel failed to adequately confer with him before he pled guilty, rendering his pleas involuntary. Appellant contends that his attorney did not properly advise him on the law applicable to his cases or the alternatives available to him and, therefore, appellant asserts, his guilty pleas were not knowing and voluntary. In determining the voluntariness of the pleas, we consider the entire record. Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on alleged ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel=s errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding the two part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) applies to challenges to guilty pleas based on ineffective assistance of counsel); Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Therefore, the question posed in this case is whether the trial court abused its discretion in determining that appellant did not meet his burden of proving that: (1) counsel=s alleged failure to properly advise appellant on the law applicable to his cases or the alternatives available to him, including the availability of the jury to assess punishment, was outside the range of competence demanded of attorneys in criminal cases; and (2) but for defense counsel=s errors, appellant would not have pleaded guilty and would have insisted on going to trial. See Morrow, 952 S.W.2d at 536. The record of the hearing on appellant=s motion for new trial does not show the trial court abused its discretion. Despite appellant=s contentions, his trial counsel testified that he met with appellant in his law office, and talked to appellant on several occasions to discuss his cases and defense. During many conversations, appellant=s counsel discussed the option of restitution with him, which, in turn, might have opened up the possibility of probation. Appellant=s counsel informed him that, unless appellant paid restitution, the State would not consider probation. More specifically, the record reflects the following during direct examination of appellant=s trial counsel, R. P. ASkip@ Cornelius: [Appellant=s counsel]: Okay. Going C going back to the day of trial. You were set June 27th, 2005, according to the record. You had some discussions with him prior to that date about restitution, how much he could make. And obviously it=s failed. Did you ever discuss with him the possibility or suggest to him that it was better to go to the Judge for punishment because in all likelihood he would get probation, rather than from the State? [Cornelius]: No. From the State? You mean from a jury? [Appellant=s counsel]: Well, fromCor that he was neverCyou were never going to be able to enter a plea agreement with the State for probation. So, your best option is to go the Judge because he=ll give you probation. Did you ever suggest anything like that to him? [Cornelius]: No. And never I felt [should Anever@ be after AI@?] the Judge would give him probation. [Appellant=s counsel]: Okay. [Cornelius ]: And I thought his best option was to go to trial with a jury, but he didn=t want to do that. . . . [Appellant=s counsel]: When, if you can recall, was the decision made to go to the Judge rather than to the Jury? [Cornelius]: I don=t know. When it was made, I don=t know. [Appellant=s counsel]: Okay. Well, it would had to have beenCwould you agree with me it had to have been made at some point on that day in deciding whether to go to trial or plea because he pled that day that you were set for trial? [Cornelius]: No. I don=t know if we talked about it beforehand. Was that the only trial setting? [Appellant=s counsel]: That was the only trial setting accordingC [Cornelius]: Okay. [Appellant=s counsel]: AccordingCaccording to the record, that was the only trial setting. [Cornelius]: I really don=t know because myCmy recollection is that up to the last second, his promises were that he was going to get the restitution. AndCand the case had just been reset so many times for him to get the restitution, that the State just wasn=t going to agree to it any further. But even after it was set for trial, he promised to get the restitution, all of it. And he had some story as to how he was going to get it. And it just didn=t happen. But he may have told me before the day of trial that it wasn=t going to come to fruition. And maybe the decision was made at that point. I don=t really remember. It was his decision. And he chose to plead to the Judge. He could have had a jury, you know, and he just decided to go to the Judge. [Appellant=s counsel]: And you neverCnever suggested to him at all that it was better to go to the Judge because this Judge would give him probation? [Cornelius]: No, I never said that. . . . [Appellant=s counsel]: Sorry. If my client had stated that the first time he heard about the aggregate theft and the charge of aggregate theft against him was June 27th, the day he reviewed the plea papers, would be that correct or incorrect? [Cornelius]: Incorrect. [Appellant=s counsel]: Okay. And yet again, you told himCyou never told him even as you were signing the plea papersClet me rephrase that. At any point when you were filling out the plea papers with him, did you prepare him for the possibility of getting jail time? Had y=all had a discussion about jail time versus probation? [Cornelius]: Absolutely. [Appellant=s counsel]: And what did you tell him? [Cornelius]: That he probably was not going to get probation because he hadn=t paid any restitution, not a dime in all the years. When did this happen? In all the years that had gone by, he had not paid a time [sic] of restitution. And I felt it unlikely he would get probation. During cross-examination, appellant=s trial counsel testified on this issue as follows: [The State]: You said that there wasCyou don=t recall when the decision was made about not going forward with the jury trial, but the decision was his. Can you recall how heChow you were informed that he made the decision he did not want to take the case to a jury? [Cornelius]: He told me. [The State]: He here in person, in your office, on the telephone? [Cornelius]: I can=t remember if it was on the telephone before the day of trial or if it was the day of trial. I can=t remember. [The State]: Okay. [Cornelius]: I can=t remember when it was that he finally said I=m not going to be able to get the money. [The State]: On the day of trial, that=s when we entered into the pleaBentered the plea before the Court, correct? [Cornelius]: If that=s what the record shows. I don=t really remember. [The State]: Okay. Well, you and/or I would have completed the paperwork. And did you then sit down and go through the paperwork with him? [Cornelius]: Yes. [The State]: Do you recall if he asked you any questions during that time? [Cornelius]: I don=t recall. [The State]: Okay. [Cornelius]: He B I don=t think it was much of a problem. After all, he is, according to him, a lawyer. . . . [The State]: Okay. Do you remember there being any difficulty in Mr. Westell understanding what was going on around him that day? [Cornelius]: None. [The State]: Do you remember being able to speak with him and he answer questions in an appropriate fashion? [Cornelius]: Yes. [The State]: Was he coherent to you? [Cornelius]: Yes. Moreover, appellant and his lawyers signed a document entitled AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,@ in which appellant agreed with the following statement: AI am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed this case with him.@ This document contains the following statement signed by the trial judge: After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the defendant is mentally competent and the plea is free and voluntary. I find that the defendant=s attorney is competent and has effectively represented the defendant in this case. On the same day (June 27, 2005), the appellant signed another document entitled AAdmonishments@ which contains the following statement: AI fully understand the consequences of my plea herein, and after having consulted with my attorney, request that the trial court accept said plea.@ See Grays v. State, 888 S.W.2d 876, 878 (Tex. App.CDallas 1994, no pet.) (concluding that when a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing the defendant=s guilty plea was entered knowingly and voluntarily, and it is the defendant=s burden to show otherwise); Enard v. State, 764 S.W.2d 574, 575 (Tex. App.CHouston [14 Dist.] 1989, no pet.) (holding appellant=s guilty plea was not involuntary because it was based on his attorney=s erroneous advice where, among other things, appellant=s plea papers reflected he entered his guilty plea voluntarily). In this document appellant states: A I am totally satisfied with the representation provided by my counsel and I received effective and competent representation.@ At a hearing on a motion for new trial, the trial court is the trier of fact and its findings should not be disturbed unless abuse of discretion has been demonstrated. See Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.CHouston [14 Dist.] 1996, pet. ref=d). In addition, the trial court can consider the interest and bias of any witness, and the judge is not required to accept as true the testimony of the accused or any defense witness simply because it was not contradicted. See id. Based on appellant=s trial counsel=s testimony during the motion-for-new trial hearing, and the documents appellant signed, the trial court did not abuse its discretion by impliedly concluding that the alleged ineffective assistance of appellant=s trial counsel did not cause appellant to enter involuntary guilty pleas. See Thomas v. State, 2 S.W.3d 640, 641 (Tex. App.CDallas 1999, no pet.).[6] B. Did the trial court abuse its discretion in denying appellant=s motion for new trial on appellant=s claim that his trial counsel was ineffective for failing to adequately prepare appellant to testify at sentencing? In his second ineffective-assistance claim, appellant contends that his counsel was ineffective for failing to adequately prepare him to testify on his own behalf during the punishment hearing. This complaint is based on the false premise that appellant testified at the punishment hearing. He did not. Moreover, there is no evidence from appellant=s motion for new trial or from the hearing on that motion to show how appellant=s trial counsel was ineffective regarding this issue. Appellant did not raise this issue at the motion-for-new-trial hearing. In his written motion for new trial, appellant made the general statement that his counsel was ineffective for failing to adequately prepare him to testify, but appellant did not offer any facts or explanation in support of this claim. The trial court did not abuse its discretion in impliedly concluding that appellant failed to satisfy both prongs of Strickland on this claim. C. Did the trial court abuse its discretion in denying appellant=s motion for new trial on his claims that his trial counsel failed to interview defense witnesses for sentencing, failed to prepare defense witnesses to testify at sentencing, and failed to interview any potential witnesses who allegedly were willing to provide mitigation evidence? In his third, fourth, and fifth claims, appellant essentially complains that his counsel was ineffective for failing to interview and secure the presence of his parents and other potential character witnesses (to be named by his parents) at the punishment phase for the purpose of providing mitigation evidence. To support this contention, appellant attached affidavits from both of his parents to his motion for new trial. The record of the hearing, however, shows that appellant=s trial counsel (Cornelius met with appellant=s parents on a few occasions, including once in his office, and once in the courtroom. Cornelius also testified that he returned every phone call that appellant=s parents made to him. In addition, although appellant attached affidavits from his mother and father stating that they both had an abundance of witnesses who were willing and available to give testimony on appellant=s behalf, neither of appellant=s parents identified any of these purported witnesses in their respective affidavits, nor did appellant or his parents attempt to explain what testimony these unnamed witnesses could have offered had they been called to testify at the punishment hearing. Moreover, appellant does not explain how any such testimony might have impacted the outcome of the case. Counsel=s failure to call witnesses at the guilt/innocence or punishment phases is irrelevant absent a showing that the purported witnesses were available and that their testimony would have benefitted appellant=s case. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Appellant had an opportunity to have his parents and any other purported character witnesses testify at the motion-for-new trial hearing and explain what testimony they would have offered had they been called to testify at the punishment hearing. Appellant, however, did not offer any such evidence at the motion-for-new trial hearing. Accordingly, the record is insufficient to establish ineffective assistance on this ground. See Melancon v. State, 66 S.W.3d 375, 379 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (holding record insufficient to establish that counsel's failure to subpoena alibi witness and secure her testimony at trial constituted ineffective assistance of counsel where witness did not testify at motion-for-new trial hearing). Furthermore, the appellant must overcome the presumption that, under the circumstances of the case, counsel=s contested actions may be considered sound trial strategy. Strickland, 466 U.S. at 690. Strategic and tactical decisions are virtually unchallengeable when made after thorough investigation of the facts and law. Id. It is possible that appellant=s trial counsel, after talking to appellant=s parents and evaluating the facts and law, made a strategic decision not to present any character witnesses at the punishment phase. Appellant has not shown that any such conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed, 187 S.W.3d at 393; see also Hale v. State, 140 S.W.3d 381, 392 (Tex. App.CFort Worth 2004, pet. ref=d) (concluding that counsel was not ineffective for failing to investigate and interview defense witnesses in child molestation case who would testify that they had never seen the defendant act inappropriately with children and that children never appeared to be afraid or uncomfortable around defendant); Turner v. State, 932 S.W.2d 622, 625 (Tex.App.CHouston [14th Dist.] 1996, no pet.) (concluding that counsel was not ineffective for failing to call any character witnesses when character witnesses knew nothing of the facts of the assault and could testify only about defendant=s good reputation for truth and peacefulness). Even if this decision were considered unreasonable and deficient, however, a finding of ineffective assistance of counsel still would require a reasonable probability that the outcome of the sentencing hearing would have been different with character evidence or that confidence in the outcome was undermined by counsel=s failure to introduce additional character evidence. See Jaenicke v. State, 109 S.W.3d 793, 800 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d ). Appellant=s motion for new trial and affidavits, and the record of the motion-for- new trial hearing contain nothing to show how the outcome would have been different if character evidence had been introduced during the punishment phase of trial. Thus, the trial court did not abuse its discretion in concluding appellant did not establish prejudice. We conclude the trial court did not abuse its discretion by impliedly concluding that appellant failed to satisfy the first and second prongs of Strickland on these claims. D. Was trial counsel ineffective for failing to adequately object to alleged deficiencies in the PSI report? In his third issue in his original brief, appellant contends that his trial counsel was ineffective for failing to adequately object to purported deficiencies in the PSI report. This ground, as stated above in footnote 2, was not raised in appellant=s motion for new trial filed after abatement. In this issue, appellant does not discuss or identify the purported deficiencies he claims should have drawn an objection from his trial counsel. The subject of the PSI report, however, was brought up briefly during appellant=s testimony at the motion-for-new trial hearing. During the hearing, when questioned, appellant admitted that his trial counsel made some objections to the PSI report on the day of sentencing, but did not discuss what objections should have been made by this trial counsel prior to sentencing. When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to trial counsel=s trial strategy regarding an alleged instance of ineffective assistance. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating that facts at hand presented a Arare case@ in which ineffective assistance can be found on direct appeal based on a record silent as to counsel=s trial strategy). Although there was a hearing in this case, the record does not address any alleged failure of appellant=s trial counsel to object to alleged deficiencies in the PSI report or the trial strategy relating thereto. Based on this silent record regarding counsel=s failure to object to the alleged deficiencies in the PSI report, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance and show that any such conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed, 187 S.W.3d at 393; see also Freeman v. State, 125 S.W.3d 505, 506B07 (Tex. Crim. App. 2003) (stating that A[t]he record in this case is insufficient to support the conclusion that the defendant received ineffective assistance of counsel because the defendant did not develop a record in the trial court for the purpose of establishing this claim.@). Therefore, appellant has failed to satisfy the first prong of Strickland on this claim. Having addressed all of appellant=s assertions of ineffective assistance of counsel and concluded that none of these claims have merit, we overrule appellant=s third issue and affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed March 13, 2007. Panel consists of Justices Fowler, Edelman, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant contends that, on this same day, his mother filed a AMotion to Appoint Appellate Counsel and Motion for New Trial@ on appellant=s behalf. In his appellate brief, appellant cites to the clerk=s record in support of this factual statement; however, the clerk=s record does not contain either of these motions. The record contains a declaration from appellant=s mother alleging that appellate counsel had not yet been appointed to represent her son, and she, therefore, was filing a motion requesting the trial court to appoint appellate counsel for her son. [2] Appellant=s third issue, as it relates to the merits, is the only issue that remains before us in this appeal. We disposed of appellant=s first and second issuesCthat the trial court (1) erred in failing to appoint him counsel during the thirty days in which to file a motion for new trial and (2) erred by failing to have a hearing on his pro-se motion for new trialCwhen we abated this case to allow appellant time to file and obtain a hearing on a motion for new trial. [3] We note that appellant asserted items (1) and (2) in his motion for new trial but not in his appellate brief. Nevertheless, we do not see any reason to request supplemental briefing from the parties on these issues because it is the record, not the briefs, that must definitely and affirmatively support appellant=s allegations of ineffective assistance. Thompson v. State, 9 S. W.3d 808, 813 (Tex. Crim. App. 1999). Thus, we do not consider supplemental briefing on these issues necessary. See Tex. R. App. P. 38.7 (stating that it is within the appellate court=s discretion to allow supplemental briefing whenever justice requires). [4] Appellant did not raise in his motion for new trial the ground that his trial counsel was defective in failing to object to certain deficiencies in the PSI report. However, appellant did raise this ground in issue three of his original briefing. Because it is not necessary for all ineffective-assistance claims to be raised at the trial court or in a motion for new trial, we will address it in this opinion. See Robinson v. State, 16 S.W.3d 808, 811B12 (Tex. Crim. App. 2000) (concluding that it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal.). [5] Appellant raises this ground of ineffectiveness in issue three of his original briefing. However, we conclude that this ground of alleged ineffectiveness is moot because we abated this appeal and gave appellant an opportunity to file a timely motion for new trial and develop a record for appeal. Thus, we do not see any reason to address this ground in this opinion, and we overrule issue three in his original briefing as to this ground. [6] Appellant=s testimony differs from his trial counsel=s testimony in that he contends his trial counsel did not confer with him about the alternatives to entering pleas. Appellant further testified that, had he been fully informed, he would have been in a better position to make a good decision on whether to plead guilty or take his cases to trial. We note that the trial court could have accepted as true the testimony of trial counsel, and rejected the testimony of appellant even if the appellant=s testimony had not been contradicted. See Reissig, 929 S.W.2d at 113.