Willie Charles Ross v. State ( 2009 )

Affirmed and Memorandum Opinion filed November 10, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00514-CR

Willie Charles Ross, Appellant

V.

The State of Texas, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 43,274

MEMORANDUM  OPINION

A jury convicted Willie Charles Ross, appellant, of sexual assault, and the trial court sentenced him to four years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  See Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2009).  On appeal, appellant contends the trial court abused its discretion in denying his motion for new trial, predicated on an ineffective assistance of counsel claim.  Specifically, appellant alleges counsel erroneously advised him the trial court could grant him probation.  We affirm the judgment.

I. Background

            Following his conviction and sentencing, appellant filed a motion for new trial, accusing his trial counsel of ineffective assistance by erroneously advising him the trial court could potentially grant probation in his case.  He testified that counsel recommended he elect to have the judge assess punishment because (1) the jury would likely assess the maximum sentence, but (2) the judge could assess his punishment anywhere from probation to the maximum range of punishment. Thinking he might receive probation, appellant asked the judge to assess punishment. 

            Counsel denied telling appellant the judge could grant probation.  Rather, he testified that he recommended appellant opt to have the judge assess punishment because he believed the jury would likely assess the maximum sentence in light of appellant’s previous violation of a protective order and the pendency of a felony charge against him. 

After hearing the testimony of both witnesses, the court denied appellant’s motion for new trial.  In one issue on appeal, appellant contends the trial court abused its discretion by apparently resolving the conflict in testimony by believing counsel’s testimony and disbelieving his.  Because we defer to the trial court to resolve conflicts in testimony, we overrule appellant’s issue and affirm the judgment.

II. Discussion

Both the federal and state constitutions guarantee an accused the right to have the assistance of counsel.  See U.S. Const. amend. VI; Tex. Const. art. I, § 10.  The right to counsel includes the right to reasonably effective assistance of counsel.  See Strickland v. Washington, 466 U.S. 668, 686 (1984).  In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 687–88).  That is, appellant must prove by a preponderance of the evidence (1) his trial counsel’s representation was deficient in that it fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.  Id. (citing Strickland, 466 U.S. at 687–88).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 694).

            When evaluating a claim of ineffective assistance, we look to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We begin with the strong presumption that counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy.  Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Thompson, 9 S.W.3d at 813.  To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 813.  Our judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  Thus, counsel will not be rendered ineffective merely because other counsel may have tried the case differently.  Id. 

            We review the denial of a motion for new trial for an abuse of discretion.  Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. State v. Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App. 2007).  We do not substitute our judgment for that of the trial court. Holden, 201 S.W.3d at 763.  Instead, we review the evidence in the light most favorable to the trial court's ruling and presume that all reasonable findings that could have been made against the losing party were so made.  See Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet. filed); Acosta v. State, 160 S.W.3d 204, 210 (Tex. App.—Fort Worth 2005, no pet.).  Only when no reasonable view of the record could support the trial court's ruling do we conclude the trial court abused its discretion by denying the motion for new trial.  Holden, 201 S.W.3d at 763. 

With respect to a motion for new trial, the trial judge possesses broad discretion in assessing the credibility of witnesses and weighing the evidence to determine whether a different result would occur upon retrial.  Morris v. State, 696 S.W.2d 616, 620 (Tex. App.—Houston [14th Dist.] 1985), aff’d, 739 S.W.2d 63 (Tex. Crim. App. 1987).  In assessing the evidence presented at the new trial hearing, the trial judge, sitting as the trier of fact, may consider the interest and bias of any witness.  Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (per curiam) (citing Costello v. State, 266 S.W. 158 (Tex. Crim. App. 1924)).  In this case, the trial judge apparently weighed the conflicting testimony and chose to believe counsel.  Because the judge was free to believe either witness and reject the other’s testimony, we hold the court did not abuse its discretion in denying the motion for new trial.  See id. 

Thus, the trial court implicitly found counsel did not misrepresent the judge’s ability to grant probation.  Because we must defer to the trial court’s finding, the record does not affirmatively demonstrate counsel’s alleged ineffectiveness.  See Thompson, 9 S.W.3d at 813.  Therefore, appellant has not overcome the strong presumption that counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy.  See Stults, 23 S.W.3d at 208; Thompson, 9 S.W.3d at 813.  Accordingly, we overrule appellant’s sole issue on appeal.  

III. Conclusion

Finding no merit in the issues presented, we affirm the judgment.

                                                                                                                                                                                                                                                                                                                                                                                                /s/        Kent C. Sullivan

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

Do Not Publish — Tex. R. App. P. 47.2(b).