Joseph Clifton Jones v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00288-CR
JOSEPH CLIFTON JONES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12617
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MEMORANDUM OPINION1
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Appellant Joseph Clifton Jones pleaded guilty to delivery of between one
and four grams of methamphetamine, and the jury assessed his punishment at
forty-five years’ confinement. In a single point, Jones argues that he received
ineffective assistance of counsel and is thus entitled to a new trial. We will affirm.
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See Tex. R. App. P. 47.4.
In October 2012, an undercover police officer, with the help of a
confidential informant, purchased 1.75 grams of methamphetamine from Jones.
Jones was subsequently arrested and charged with delivery of more than one
gram and less than four grams of methamphetamine. The day after his arrest,
Jones spoke with a narcotics investigator from the Hood County Sheriff’s Office
and informed the officer that he used to sell methamphetamine and knew
individuals who could deliver large quantities of the drug to him. Believing Jones
had agreed to work with police as an informant, Jones was released on bail the
next day. However, instead of contacting police with information, Jones left for
California, from which he was later extradited after failing to appear in court.
During the punishment phase, both the State and defense counsel called
multiple witnesses. Defense counsel cross-examined each of the State’s
witnesses but did not pursue any redirect examination of the defense witnesses
after the State cross-examined them.
In his only point, Jones argues that his trial counsel was ineffective
because he failed to “provide any clarification or rehabilitation questions” after the
State’s cross-examination of defense witnesses. According to Jones, “[t]he
prevailing norm [for defense counsel] . . . would be to provide the jury with an
explanation or further exploration of the questions asked by the [S]tate on cross-
examination.”
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation was deficient
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and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,
307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.
Crim. App. 1999). An ineffective-assistance claim must be “firmly founded in the
record,” and “the record must affirmatively demonstrate” the meritorious nature of
the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Absent a showing of both deficient representation and prejudice towards the
defendant, the court “cannot conclude the conviction resulted from a breakdown
in the adversarial process that renders the result unreliable.” Id.
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
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It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel
“should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not
given that opportunity, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
The record is silent as to why trial counsel chose to omit further
questioning of the defense witnesses after the State’s cross-examination. Jones
did not file a motion for new trial to raise and develop the issue, nor is there any
evidence contained in any other part of the record that is relevant to the matter.
Further, continued examination of witnesses “is inherently based on trial
strategy”; therefore, it is not uncommon for attorneys to forgo questioning a
witness if he or she believes it will benefit the client. Tutt v. State, 940 S.W.2d
114, 121 (Tex. App.—Tyler 1996, pet. ref’d). As the State points out, it is
possible that defense counsel chose “not to ask any further questions . . . to
avoid emphasizing the conclusive evidence of [Jones’s] prior marijuana
conviction.” For this and other reasons, we also cannot conclude that trial
counsel’s decision to forgo redirect examination was “so outrageous that no
competent attorney would have engaged in it.” See Nava, 415 S.W.3d at 308.
4
Accordingly, looking to the totality of representation and the particular
circumstances of this case, and in light of the strong presumption that counsel’s
conduct was not deficient, we cannot conclude that Jones met his burden of
showing by a preponderance of the evidence that his trial counsel’s
representation was deficient. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at
2065; Nava, 415 S.W.3d at 307. Because Jones did not demonstrate that trial
counsel’s conduct was deficient, we need not address Jones’s prejudice
argument under the second Strickland prong. We overrule Jones’s point and
affirm the trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2015
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