Ex Parte: Colin McAndrew ( 2008 )

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                                                                                                        NO. 12-07-00134-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

            §                      APPEAL FROM THE

EX PARTE COLIN McANDREW   §                      COUNTY COURT AT LAW

§                      HOUSTON COUNTY, TEXAS

            MEMORANDUM OPINION

            Appellant Colin McAndrew filed an application for a writ of habeas corpus in the trial court after he was convicted of assault. Appellant alleged ineffective assistance of counsel by his trial attorney. After an evidentiary hearing, the trial court denied habeas relief. Appellant appeals the trial court’s denial, again arguing, in one issue, that he was denied effective assistance of counsel at trial. We affirm.

Background

            Appellant was charged with the assault of James Mitchell, the husband of Appellant’s ex-wife, Krystal Mitchell. The assault had occurred during an altercation that began when Appellant arrived at Krystal’s home to pick up his children for the weekend. A jury found Appellant guilty and assessed punishment of confinement for one year and a fine of $4,000, probated over two years.

            Appellant appealed his conviction. See McAndrew v. State, No. 12-03-00297-CR, 2005 WL 674195 (Tex. App.–Tyler Mar. 23, 2005, pet. ref’d) (mem. op., not designated for publication). Among Appellant’s issues were complaints that his trial counsel was unconstitutionally ineffective. Id., at *6. Appellant had filed a motion for new trial, alleging ineffective assistance of counsel. Id., at *7. However, he had not called counsel as a witness nor had he provided an affidavit from counsel explaining his actions. Id. We held that “[i]n the absence of a record identifying what trial counsel’s reasons may have been for pursuing the chosen course, we must presume the actions were taken deliberately as part of sound trial strategy.”¹ Id. Therefore, we overruled Appellant’s ineffective assistance complaints and affirmed his conviction. Id., at *7-8. Appellant then petitioned the court of criminal appeals for discretionary review, which was refused.

            Appellant filed an application for a writ of habeas corpus, together with a motion for an evidentiary hearing on the application. The sole issue for habeas relief was a claim that Appellant was denied effective assistance of counsel at trial. The trial court denied the writ without a hearing. On appeal, we reversed the trial court’s denial and remanded the case to the trial court for a hearing on the writ application. Ex parte McAndrew, No. 12-06-00179-CR, 2006 WL 3086183, at *2 (Tex. App.–Tyler Nov. 1, 2006, no pet.) (mem. op., not designated for publication). This hearing was to afford Appellant the opportunity “to develop testimony to substantiate his claims of ineffective assistance of counsel.” Id. After conducting the required hearing, the trial court again denied Appellant habeas relief. This appeal followed.

Ineffective Assistance of Counsel

            In his sole issue, Appellant contends that his trial counsel’s performance fell below prevailing professional norms, denying him the right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution.

Standard of Review

            Applications for Habeas Corpus Relief

            An applicant for a writ of habeas corpus bears the burden of proving his factual allegations by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). In reviewing the trial court’s decision, appellate courts review the facts in the light most favorable to that decision and should uphold it absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Further, the trial court’s decision will be upheld on appeal if it is correct under any provision of the law. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001). This principle holds true even where the trial court has given an erroneous reason for its decision. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

            In weighing the evidence presented at a habeas hearing, the trial court may accept or reject some or all of any witness’s testimony. Ex parte Peterson, 117 S.W.3d at 819 n. 68. Article 11.072 of the Texas Code of Criminal Procedure establishes the habeas procedure in felony and misdemeanor cases in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision. Tex.Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005). Under article 11.072, if the trial court determines from the face of an application, or documents attached to the application, that the applicant is manifestly entitled to no relief, the trial court shall enter a written order denying the application as frivolous. Tex.Code Crim. Proc. Ann. art. 11.072, § 7(a) (Vernon 2005). In any other case, the trial court shall enter a written order including findings of fact and conclusions of law. Id. Such written findings of fact are especially helpful to appellate courts in determining whether the trial court has rejected unrebutted testimony as incredible or unworthy of belief. Ex parte Peterson, 117 S.W.3d at 819 n. 68.

            Reviewing courts should “afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.” Id. at 819. Appellate courts also afford that same level of deference to a trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. Although we afford almost total deference to a trial court’s determination of the historical facts, where a trial court’s finding of fact is not supported by the record, appellate courts may hold that the facts are contrary to the finding. See id. at 819 n. 67 (“[I]f the trial court’s ruling is not supported by the record, this Court may make contrary findings.”); Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989) (“If the record will not support the trial judge’s [findings], then this Court may make contrary findings.”). Accordingly, appellate courts are obligated to determine if the record developed supports the trial court’s findings where those findings are relevant to an appellate decision. See Ex parte Adams, 768 S.W.2d at 288. Finally, appellate courts review de novo those “mixed questions of law and fact” that do not depend upon credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819.

            Ineffective Assistance of Counsel

            The standard for testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and is applicable to this appeal. See Hernandez v. State, 726 S.W.2d 53, 54-57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance, an appellant must show that his attorney’s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064-65, 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 694, 104 S. Ct. at 2068.

            “[A] defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id., 466 U.S. at 693, 104 S. Ct. at 2052 (emphasis added); see Pennington v. State, 768 S.W.2d 740, 741 (Tex. App.–Tyler 1988, no pet.). The Supreme Court “found this ‘outcome determinative’ standard . . . too heavy a burden on defendants, and that its use was not appropriate.” Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985) (citing Strickland, [466 U.S. at 693-95], 104 S. Ct. at 2068-69). Instead, “[t]he result of a proceeding can be rendered unreliable . . . even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”² Strickland, 466 U.S. at 693, 104 S. Ct. at 2052; see Doherty v. State, 781 S.W.2d 439, 442 (Tex. App.–Houston [1st Dist.] 1989, no pet.).

            Our review of counsel’s representation is highly deferential; we indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. This court will not second guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course, without more, support a finding of ineffectiveness. See id. But see Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980) (“Surely at some point ‘tactic’ becomes an unsatisfactory justification for ineptness. And where silence which results in waiver of potentially reversible error in almost all respects cannot be explained by the practitioner, we are not warranted in excusing his major derelictions.”). Further, a reviewing court will not find ineffectiveness by isolating any portion of counsel’s representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

Discussion

            Appellant complains of five instances in which he alleges that trial counsel’s representation fell below the standard of prevailing professional norms. We will discuss the first two together and the others separately.

Failure to Object to Nonresponsive Testimony

            Appellant first complains counsel was ineffective for failing to object to Krystal’s direct examination testimony that Appellant has a habit of hitting people when he is mad. The testimony was part of Krystal’s description of how Appellant’s attempt to pick up his children for the weekend had escalated into a fight between Appellant and James, a fight which was, according to Krystal, started by Appellant. The State’s question and Krystal’s answer were as follows:

Q:            When [Appellant] got out of [his] car what did he do?

A:            He got out of his car like he was mad. He got out of the car. I got between – in between – in between he and [James] because when he’s mad he has a habit of hitting people, [Appellant] does. So I got in between them. (emphasis added)

            Krystal’s testimony regarding Appellant’s propensity for violent conduct was not responsive to the State’s question. See Bowling v. State, 122 Tex. Crim. 7, 8-9, 53 S.W.2d 469, 469-70 (1932). Likewise, this testimony was inadmissible character evidence. See Tex. R. Evid. 404. Indeed, the State has made no attempt on appeal to argue that this testimony was properly admissible. Had trial counsel made a timely objection that the testimony was nonresponsive and inadmissible character evidence, Appellant would have been entitled to have the testimony stricken and to have the trial court instruct the jury to disregard it. See Smith v. State, 763 S.W.2d 836, 841 (Tex. App.–Dallas 1988, pet. ref’d) (addressing the predicate for objecting to nonresponsive testimony). Nonetheless, trial counsel made no objection.

            The second instance complained of occurred later, during Appellant’s trial counsel’s cross-examination of Krystal. Counsel asked Krystal, “you don’t have a good relationship with Mr. McAndrew, do you?” She responded, “No, he abused me for 14 years.” The State has made no attempt on appeal to argue that this testimony was properly admissible. Like Krystal’s earlier testimony, this testimony was nonresponsive and inadmissible character evidence. See Tex. R. Evid. 404; Bowling, 122 Tex. Crim. at 8-9, 53 S.W.2d at 469-70. Again, however, trial counsel made no objection.

            At the habeas hearing, trial counsel was questioned about his failures to object. Counsel testified that Appellant’s physical appearance and mannerisms were very harmful to his case. Counsel stated that, based upon Appellant’s appearance and mannerisms, he altered his trial strategy to one of “damage control.” According to counsel, “I didn’t want to draw any more attention to [Appellant] than he had already drawn to himself.” Based upon this trial strategy, counsel made the decision each time to not object to Krystal’s testimony. As trial counsel explained throughout the habeas hearing,



. . . you have a client that is sitting there with his sleeves rolled up, leaning forward in his chair, every time he hears something he doesn’t like, looking like he’s ready to pounce . . . . I assessed the overall credibility of the witnesses and - - and my client and his actions, and yes, I determined at some point [that] it was a losing cause. We had to run - - to do damage control, keep him out of jail, not inflame the jury anymore [sic] than they were already inflamed by his actions and reactions [that occurred in the courtroom]. . . . I decided during the course of this trial that this jury had made up their mind long before [Appellant] took the stand. . . . [Appellant’s] hair was a mess. He looked like he had just gotten out - - out of bed. His shirt was all wrinkled. It didn’t look like it had ever been starched or ironed. He came in. He sat on the edge of his chair. He rolled his sleeves up and he put his arms on the table like he was ready to pounce . . . . His - - his skin would flush [red] when he heard something he didn’t like. He looked like he was going to get up and pounce. He just had a very bad appearance. We told him not to roll his sleeves up. We told him to sit still, don’t be shifting in his chair so much. He wouldn’t listen.

            The trial court echoed the problematic nature of Appellant’s appearance and mannerisms in its written findings of fact, stating that

[t]rial counsel had a difficult defendant to manage during the trial of the case and he expressed these concerns well during his examination at [the habeas] hearing. A defendant who fails to follow the advise [sic] of counsel in maintaining a proper demeanor during the trial can make it difficult for counsel to present a case successfully to a jury. While trial counsel's performance may not have been perfect in hindsight, it was not [deficient] in any manner . . . .

            An appellant bears the burden of proving, by a preponderance of the evidence, that his attorney’s representation fell below the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813. Reading the record before us, we are not in a position, without more, to judge whether the risk of the jury focusing their view on Appellant outweighed the prejudicial nature of the testimony in question.³ Appellant has not met his burden to prove that this aspect of trial counsel’s representation fell below the standard of prevailing professional norms.⁴

            Failure to Impeach with Written Statement

            Appellant’s third complaint is that his counsel was unconstitutionally ineffective by failing to impeach Krystal and James with a previous inconsistent written statement to the police. The written statement, signed by Krystal, read in pertinent part:

[Appellant] drove up the drive way . . . . [Appellant] got out of the car [and was] yelling at me . . . . James told him to leave and not [to] talk to me that way. [Appellant] went to the side of me and knock[ed] James to the ground (James says he missed[,] grabbed James by the neck[,] and knocked him to the ground) . . . . (emphasis added).

            The information alleged that, on December 14, 2002, Appellant “intentionally, knowingly, or recklessly cause[d] bodily injury to James Mitchell, by striking James Mitchell in the face and head area, causing his nose to be broken and bleeding with other facial injuries.” Therefore, the issue of whether Appellant punched James in the face was pivotal to a conviction of Appellant. According to Appellant, counsel’s failure to impeach constituted ineffective assistance because the written statement contradicted Krystal’s and James’s trial testimony that Appellant started the fight in question by punching James in the face.

            The outcome of the trial turned on the credibility of the witnesses. Appellant, Krystal, and James were the only witnesses to testify about whether Appellant punched James in the face to start the fight. Both Krystal and James testified that the fight began when Appellant punched James in the face. Appellant testified that he did not punch James in the face and that he acted in self defense. Because the outcome of the trial turned on whether the jury believed Appellant or Krystal and James, passing over the opportunity to impeach Krystal and James regarding their version of the facts was an omission of a very serious nature.

            The trial court stated in its findings of fact and conclusions of law that

[t]he [written] statement would appear to bolster the [State’s] witnesses. . . . The statement is unclear, reasonable people could disagree as to whether the statement would impeach the statements made by [Krystal and James] or not. The decision not to introduce the statement . . . was not outside the range of competent legal counsel.

Taking into account the totality of the representation, the trial court also made the above quoted finding regarding the appearance and mannerisms of Appellant at trial.

            Trial counsel testified at the habeas hearing that he was pursuing the above described “damage control” defensive strategy and that failing to use the impeachment evidence was consistent with such a strategy. In reviewing the statement in its entirety, we note that it also included statements that Appellant had not seen his children “for any amount of time for 4 months,” was behind on child support, and was using profanity during the incident, thereby bolstering Krystal’s and James’s similar negative testimony regarding Appellant. Further, while there appears to be a more probable meaning to the written statement, it would not have been impossible for a witness to explain the words of the statement differently. Also, while we have some ability to weigh the value of this impeachment evidence, our ability is not as great as that of the trial court, who heard live testimony from the witnesses in question. Finally, we are limited to reading the record before us and, therefore, are not in a position, without more, to adequately judge whether trial counsel’s damage control defensive strategy, based on Appellant’s appearance and mannerisms at trial, was a reasonable strategy or whether such a strategy’s implementation was more effective than the potential impeachment value of the written statement. Appellant has not met his burden to prove, by a preponderance of the evidence, that this aspect of trial counsel’s representation fell below the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813.

            Failure to Call a Child Witness

            In Appellant’s fourth subissue, he complains that trial counsel provided ineffective assistance of counsel when he failed to call Kara, Appellant and Krystal’s daughter, as a witness to impeach Krystal’s testimony that unpaid child support was not a reason Krystal had refused to allow Appellant to pick up his children.   He also complains that trial counsel provided ineffective assistance when he failed to call Kara as a witness to impeach James’s and Krystal’s testimony that Appellant told Kara to shoot James with her mother’s rifle during the course of the fight in question.⁵ In a witness statement to police given on the day of the offense, Kara stated that Krystal would not let Appellant pick up the children because “he wouldn’t pay child support.” Kara also wrote in the statement that Krystal “yelled [at her] to go get the rifle” and when she got outside, she “saw my mom yelling at [Appellant and James] to stop [and] James on top of my dad yelling at me to shoot him.” Finally, according to Kara’s statement, her “mom said ‘give me the damn gun,’” and Kara complied.

            At trial, Krystal denied that the argument which precipitated the fight in question was related to Appellant’s delinquent child support payments and, instead, testified that Appellant had come on the wrong weekend and that she had been apprehensive about letting him pick up the children without first obtaining his new address. Appellant complains that trial counsel should have called Kara to impeach her mother. Trial counsel testified that he and Appellant decided not to call Kara, and contended it was a trial decision, but did not recall the basis for that decision.

            At trial, Appellant’s trial counsel asked Krystal if James had told Kara to shoot Appellant. Krystal denied that James told Kara to shoot Appellant. James testified to the same. Although trial counsel admitted that he could have called Kara to impeach Krystal and James, he again explained that he and Appellant had discussed Kara’s statement and that “it was a trial decision not to call her.” Again, counsel could not recall the basis for that decision.

            The trial court found, in its written findings of fact, that

[t]he decision to call a child or not to call a child[] as a witness should be left to the discretion of trial counsel. . . . The decision to place a child of the parties between her parents before a jury must be evaluated carefully. The defendant calling a child to testify where she was not a direct witness to the alleged offense could offend the sensibilities of a juror and harm the credibility of the defendant. The decision not to call this child as a witness was clearly within the bounds of sound trial strategy.

While the evidence in the record does not support that this decision was “clearly within the bounds of sound trial strategy,” this evidence also does not support that it was not. There is evidence of the value of calling Kara to testify as well as testimony from trial counsel that Appellant’s “damage control” defense was the best defense under the circumstances. Further, we agree with the trial court that calling a child witness could “offend the sensibilities of a juror.” We have no direct evidence of why trial counsel chose not to call Kara. Perhaps her father, Appellant, simply did not want her involved. Without more, we can only speculate. Appellant has not met his burden to prove, by a preponderance of the evidence, that this aspect of trial counsel’s representation fell below the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813.

            Failure to Object to Closing Argument

            In his final complaint, Appellant contends trial counsel rendered ineffective assistance when he failed to object to the prosecutor’s closing argument during the guilt-innocence phase of the trial. The jury charge included a self defense instruction that the jury should consider whether it “reasonably appeared to the defendant,” “viewed from the standpoint of the defendant at the time,” “that his person was in danger of bodily injury . . . .” The State argued during closing argument that

if you read that law that the judge just gave you about self-defense it tells you that “a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself[.”] Now, that’s the reasonable person’s belief, not whether Colin McAndrew believed or not that he needed to do that, but what a reasonable person believed that he needed to do something if that reasonable person were standing in Colin McAndrew’s shoes.

            Appellant claims that his trial counsel should have objected to this argument as a misstatement of the law. We disagree. The prosecution was correct in stating that the belief would have to be a “reasonable person’s belief.” Granted, this reasonable person would have to be placed in the shoes of Appellant. However, there is simply no difference between a reasonable person in the shoes of a defendant and a defendant who is required to act reasonably. See Hudson v. State, 956 S.W.2d 103, 104-05 (Tex. App.–Tyler 1997, no pet.) (“A person is justified in using force when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. . . . The force used by a defendant must be reasonable as contemplated from the defendant’s point of view.”); see also Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991) (plurality opinion) (“The law of self-defense and defense of property requires the jury to view the reasonableness of the defendant’s actions solely from the defendant’s standpoint.”). Any objection to the prosecution’s closing argument would have been pointless and trial counsel was not ineffective by failing to make an objection.

            Conclusion

            We have held that Appellant has not sufficiently proved that his trial counsel’s representation fell below the standard of prevailing professional norms. Therefore, we hold that the trial court did not err in denying Appellant’s writ of habeas corpus application. We overrule Appellant’s sole issue.

Disposition

            We affirm the trial court’s denial of the writ of habeas corpus.

                                                                                                   SAM GRIFFITH

                                                                                                               Justice

Opinion delivered January 31, 2008.

Panel consisted of Worthen, C.J., Griffith, J., Hoyle, J.

(DO NOT PUBLISH)

¹ As we noted in our opinion, “[r]arely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. [(citation omitted)] In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. (quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999)).

² Generally, an appellant bears the burden of proving, “by a preponderance of the evidence,” that counsel was ineffective. See, e.g., Thompson, 9 S.W.3d at 813. However, no such showing may be required to prove the prejudice prong of Strickland - “that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different.” Strickland, 466 U.S. at 693, 104 S. Ct. at 2052 (“[A] defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.”); see Holland v. Jackson, 542 U.S. 649, 654-55, 124 S. Ct. 2736, 2738-39 (2004). Therefore, appellate courts should not require a preponderance of the evidence in support of Strickland’s prejudice prong. However, in relation to the first prong of Strickland, the unreasonable deficiency prong, appellate courts should require a preponderance of the evidence.

³ The second instance of testimony complained of occurred during cross examination. Because Appellant’s trial counsel was propounding questions, the jury could have already been looking in Appellant’s direction. However, trial counsel, and not this court, could actually see which direction the jury was looking. We also note that despite his appearance, trial counsel offered Appellant as a witness at trial. However, we cannot discern from the record why this decision was made or if Appellant was, perhaps, more willing to follow his attorney’s instructions when testifying than when sitting at the counsel table.

⁴ This is especially true of the second instance of testimony because of the trial court’s written findings. The trial court stated:

The [trial court] recalls that this second statement, regarding alleged abuse, was spoken by Krystal . . . with a rather sarcastic tone in her voice, not in a manner to bring out empathy from the jury, and in a subdued voice which the jury[,] and perhaps defense counsel[,] may not have actually heard or understood.

⁵ During the scuffle, Krystal ordered her daughter, Kara, to retrieve the rifle from their home. An issue at trial, and at the writ hearing, was whether Appellant told Kara to shoot James or James told Kara to shoot Appellant, her own father.