Jimmy Griffin v. State ( 2010 )

Opinion issued August 19, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00610-CR

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Jimmy Griffin, Appellant

V.

State of Texas, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Case No. 1121915

MEMORANDUM OPINION

A jury found Jimmy Griffin guilty of the felony offense of aggravated robbery and assessed a sentence of forty years’ incarceration.  On appeal, Griffin contends that appointed trial counsel violated his right to effective assistance of counsel.  Finding no error, we affirm.

Background

In the early morning hours of October 23, 2006, Griffin entered a Wal-Mart store in northern Harris County and headed toward the branch of the Woodforest National Bank inside the store.  Both the store and the bank were open twenty-four hours a day, and two tellers staffed the bank at that time. As security measures, the bank had an alarm system, used video surveillance, and inserted global positioning system (GPS) tracking devices into some of the cash bundles it held.

Griffin walked into the bank, pointed a gun at the tellers, and demanded money.  One teller gave Griffin several bundles of cash, one of which contained a GPS tracking device.  As Griffin fled, the other teller pushed the alarm button. 

The police officers responding to the alarm located Griffin through the GPS device.  They found a duffel bag in Griffin’s car that contained bundles of cash wrapped in tape bearing the bank’s name.  The bag contained $7,389.  Further search of Griffin’s car led to discovery of another $1,000 in the car’s center console, a loaded handgun in the glove compartment, and the clothes Griffin wore during the robbery.

The officers took Griffin back to the bank, where the tellers identified him as the robber.  A grand jury indicted Griffin for aggravated robbery.  The trial court appointed two attorneys to defend Griffin.  After Griffin refused the State’s plea offer, he entered a plea of not guilty, and the case went to trial.

During the guilt-innocence phase of trial, the jury saw the DVD and still photo showing Griffin committing the robbery, and heard testimony from the tellers, the store security guard, and the police officers who had reported to the scene, arrested Griffin, and investigated the crime.  With respect to his prior criminal history, Griffin entered into a stipulation of evidence, in which he waived his right against self-incrimination and confessed to

· Pleading guilty in 2002 to the felony offense of injury to a child in exchange for deferred adjudication and three years of community supervision;

· Receiving a conviction in 1993 for misdemeanor assault, for which he served 120 days in the Harris County Jail; and

· Receiving a conviction in 1989 for the felony offense of aggravated robbery, for which he received a sentence of ten years’ confinement in the Texas Department of Corrections.

Also during the punishment phase, the State had Griffin’s stepdaughter testify about an incident that occurred when she was fourteen years old in which Griffin reached underneath her clothes while she was asleep and touched her breast. Griffin denied touching his stepdaughter’s breast, and claimed he committed the robbery only because he would rather go to prison for something he did than be sent on a false indecency charge.

Ineffective Assistance of Counsel

Griffin first contends that the case must be reversed because his trial counsel did not provide him with reasonably effective representation.  To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).  A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness claim.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it.  Andrews, 159 S.W.3d at 101.

We cannot speculate beyond the record provided, so any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Because the record is usually underdeveloped, direct appeal is often an inappropriate forum in which to bring this type of claim because the reasonableness of counsel’s decisions often involves facts not appearing in the appellate record.  Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14.  Therefore, it is critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel’s conduct was strategic.  Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  This kind of record is best developed in a hearing on a motion for new trial or by application for a writ of habeas corpus.  See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.

Here, Griffin moved for new trial, but the trial court did not hear the motion before it lost plenary power.  Without evidence of the strategy and methods involved concerning counsel’s actions at trial, we presume that sound trial strategy underlies them.  See Thompson, 9 S.W.3d at 814; Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

Agreement to strike prospective juror

In his first Strickland complaint, Griffin contends that trial counsel rendered ineffective assistance by agreeing with the State to strike a member of the venire panel after the trial court denied the State’s motion for cause.  That panel member, according to Griffin, showed that he would have favored the defense’s position in stating his opinion that he believed members of the Galveston police force were “crooked.” 

          Jury selection, in particular, involves strategy. Biagas v. State, 177 S.W.3d 161 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).  Here, the record does not contain any evidence to rebut the presumption that defense counsel made a strategic decision to agree to the State’s request to strike the panel member.  The trial court called the panel member to the bench after discovering that he failed to disclose a prior arrest and denied the State’s request to strike him for cause after the panel member responded that he could still be fair in this case.  Defense counsel had the first-hand opportunity to evaluate the panel member’s demeanor and reasonably could have concluded the individual lacked candor or exhibited some other quality that made him more objectionable than the remaining panel members.   Griffin thus fails to show that defense counsel’s agreement to strike the panel member amounted to ineffective assistance of counsel.

          Failure to conduct adequate voir dire

          Griffin next contends that trial counsel rendered ineffective assistance because he conducted a very brief voir dire.  The record indicates that the trial court and the State questioned the venire panel for nearly two hours on a variety of topics. Defense counsel addressed the panel on voir dire for fifteen minutes.  Griffin does not identify any issue that the trial court and the State did not raise during voir dire that his trial counsel should have raised, or any follow-up question made necessary by the venire’s responses to the earlier questioning.  We will not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy.  Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).  Appellant thus fails to rebut the presumption that counsel acted reasonably.  See Thompson, 9 S.W.3d at 814.

          Failure to adequately cross-examine prosecution witnesses

          In his third Strickland issue, Griffin complains that trial counsel did not adequately cross-examine the State’s witnesses.  Specifically, Griffin points out his trial counsel’s failure to cross-examine (1) one of the bank tellers on the effect of her hearing loss on her ability to hear Griffin’s demand that she “lie down”; (2) a police officer on his testimony that the bank considered $1,000 in cash to still be missing; (3) a police deputy on his testimony concerning his discovery of the missing $1,000 in the car’s center console; (4) the store security officer about his testimony that the police did not turn in the missing $1,000.

Defense counsel reasonably could have concluded that additional cross-examination of these witnesses could have elicited testimony undermining Griffin’s defense or opened the door to facts damaging to his case.  Griffin does not explain how counsel’s failure to ask additional questions caused him prejudice.  Without a more fully developed record, we presume that counsel had sound strategic reasons for not pursuing additional cross-examination of these witnesses.  See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980) (“A full inquiry into the strategy or tactics of counsel should be made only if from all appearances after trial, there is no plausible basis in strategy or tactics for his actions.”).   

          Failure to file pre-trial motions and object to extraneous offense evidence

          Griffin contends that his trial counsel was ineffective because they failed to file pretrial motions (1) requesting that the State give notice of its intent to offer evidence of extraneous offenses or bad acts; (2) requiring the State to reveal any prior agreement that could influence a witness’s testimony; (3) in limine to exclude evidence of Griffin’s prior convictions and parole status; (4) to suppress the statement “I messed up,” that Griffin made while in police custody; and (5) for a psychiatric examination. 

A trial counsel’s failure to file pretrial motions is not per se ineffective assistance of counsel.  Bonilla v. State, 740 S.W.2d 583, 586–87 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).  Further, unless the appellant shows that the pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion.  Jackson, 973 S.W.2d at 957 (citing Roberson v. State, 852 S.W.2d 508, 510–12 (Tex. Crim. App. 1993)); see also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (observing that Strickland standard does not require that defense counsel file futile motions).  

Nothing in the record shows that the failure to file motions prejudiced Griffin. The record does not reveal whether counsel conducted any informal discovery, and there is no showing that discovery would have factually changed any of the proof at trial.  Griffin stipulated to his prior convictions introduced in the punishment phase of the trial.  The State also gave defense counsel notice of its intent to introduce evidence that Griffin touched his stepdaughter’s breast, and the indecency charge arising from that allegation was relevant to the apparent defense strategy of having Griffin accept responsibility for the aggravated robbery and other prior convictions but deny the charge of indecency.  An attorney’s failure to object to admissible testimony does not constitute ineffective assistance.  Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). 

          With respect to the absence of a motion to suppress Griffin’s custodial statement “I messed up,” Griffin’s counsel objected when the officer testified concerning the statement before the jury, and the trial court sustained the objection and instructed the jury to disregard the statement. We presume that a jury will obey a trial court’s instruction to disregard evidence that has not been admitted.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  Griffin thus fails to show that he was prejudiced by counsel’s failure to request suppression of that statement.

          In contending that his counsel was ineffective for failing to have him evaluated by a psychiatrist, Griffin points solely to defense counsel’s comment, during closing argument, that Griffin’s “thinking is just completely skewed.”  Defense counsel used that statement to explain Griffin’s testimony that he would rather commit aggravated robbery than be convicted of an indecency offense he did not commit.  Trial counsel’s argument suggests that Griffin had bad judgment, not that he was mentally incompetent.  That passing observation does not support a claim that trial counsel should have sought a psychiatric examination to determine whether Griffin was legally incompetent to stand trial. 

Griffin misplaces his reliance on Ex parte Briggs.  187 S.W.3d 458 (Tex. Crim. App. 2005).  The defendant in that case, a seventeen-year-old mother whose baby died in the hospital when he was two months old, was charged with injury to a child causing death.  Id. at 461.  Before the baby’s death, the defendant repeatedly took him to doctors, but the birth defect causing his symptoms went undiagnosed.  Id.  The medical records and autopsy report led medical experts retained in the habeas case to conclude that the baby died of natural causes, contrary to the conclusion reached during the criminal investigation that culminated in the criminal charges against the mother.  Id. at 462.  The Court of Criminal Appeals—observing that “the clear and obvious defense strategy, which applicant’s trial attorney recognized, was to focus on Daniel’s medical history and his cause of death”—held that the defendant’s privately retained counsel rendered constitutionally ineffective assistance for deciding not to retain a medical expert for financial reasons and in failing to request state funding for retaining medical experts to determine the baby’s cause of death.  Id. at 467–69.

Nothing in the record here shows that a psychiatric evaluation was crucial to a defensive strategy or that the failure to obtain one rendered trial counsel’s representation so deficient and lacking in tactical or strategic decision-making as to overcome the presumption that his conduct was reasonable and professional.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  We therefore hold that Griffin has failed to show that his counsel rendered ineffective assistance by failing to file these pretrial motions.

Ineffective assistance during closing argument

          Griffin complains that his counsel’s statement, during the punishment phase closing argument, that “there was some touching” of Griffin’s stepdaughter amounted to an admission to the untried charge of indecency.  Immediately following that statement, defense counsel recounted that the stepdaughter woke up and heard Griffin walking away from her room, that “she thought she felt something” and told her sister “that she dreamed that it happened, but “couldn’t remember it.”  Read in context, defense counsel’s argument does not admit to the charge; rather, it emphasizes to the jury the weakness of the evidence supporting the indecency charge, and suggests that the stepdaughter may have had other motives to accuse Griffin.  Even if this point could have been more artfully expressed, counsel’s effort to give the jury a basis for having reasonable doubt concerning the indecency charge does not constitute ineffective assistance.  See Bone, 77 S.W.3d at 835. 

          Griffin also contends that counsel was ineffective because he failed to object to the State’s summation of the evidence concerning the incident with the stepdaughter.  Specifically, Griffin points to the prosecutor’s statement that the stepdaughter awoke and found Griffin touching her breast as beyond the evidence and inflammatory.  The failure to object to improper jury argument does not ordinarily reflect ineffective assistance.  Wilson v. State, 646 S.W.2d 472, 474 (Tex. App.—Houston [1st Dist.] 1982, no pet.).  Moreover, the statement is in response to the defense’s characterization of the incident set forth above and arguably contains an inference drawn from facts before the jury, albeit one favorable to the prosecution.  Griffin has not shown that the trial court would have committed error by overruling an objection to the statement.  See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (to show ineffective assistance of counsel for failure to object during trial, appellant must show that trial court would have committed error in overruling objection). Accordingly, Griffin fails to show that trial counsel rendered ineffective assistance during closing argument.

Conclusion

          We hold that Griffin fails to show that his trial counsel deprived him of the constitutional right to effective assistance of counsel.  We therefore affirm the judgment of the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

Do not publish.   Tex. R. App. P. 47.2(b).