Ruben James Edwards, Jr. A/K/A Ruben James Edwards v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-025-CR
RUBEN JAMES EDWARDS, JR., APPELLANT
A/K/A RUBEN JAMES EDWARDS
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
A jury found Appellant Ruben James Edwards, Jr. guilty of the felony
offense of indecency with a child by exposure and assessed his punishment at
seven years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice. The trial court sentenced Edwards accordingly, and this
appeal followed. In a single issue, Edwards claims that his trial counsel
rendered ineffective assistance of counsel. Based on the standard of review we
are required to apply, we will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
About six weeks after Edwards was arrested for the offense, Dr. Barry
Norman determined that Edwards was not competent to stand trial. Edwards
was committed to North Texas State Hospital, and approximately four months
later, on April 23, 2007, his attending physician determined that he was
competent to stand trial.
On July 11, 2007, the trial court ordered Edwards to undergo a sanity
evaluation. Dr. Kelly Goodness, a clinical and forensic psychologist, prepared
a report that Edwards was sane at the time of the offense. On July 30, 2007,
Edwards’s defense counsel filed with the trial court a written motion requesting
that an expert be appointed to conduct a competency exam and specifically
requested that Dr. Goodness be appointed to examine Edwards again, this time
to determine whether he was competent to stand trial. The record does not
reflect whether the trial court granted this motion. Subsequently, on August
21, 2007, defense counsel filed a notice of intent to raise an insanity defense.
Defense counsel filed a notice of expert witnesses on October 11, 2007 and
listed Dr. Phillip Davis and Dr. Barry Norman as expert witnesses.
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Edwards’s trial began on January 14, 2008. Edwards’s defense counsel
explained in her opening statement that
we anticipate that we will bring you experts, without a doubt, that
will tell you that Mr. Edwards was insane October 25 of 2006.
....
And we anticipate that our experts will unequivocally indicate
to you that he was insane and we anticipate that our expert—that
their expert, Dr. Goodness, did not have all the information she
needed to make the decision that she made that he was sane.
At trial, Dr. Goodness testified for the State, and Dr. Norman testified for the
defense.
In his sole issue on appeal, Edwards claims that defense counsel was
ineffective because despite her representations to the jurors that they would
hear unequivocal expert testimony that Edwards was insane at the time of the
offense, she thereafter presented two expert witnesses who testified that “not
only did they have no opinion on the issue, but that they had never even been
asked to determine whether Mr. Edwards was insane at that time of the
offense.” Defense counsel’s failure in this regard, claims Edwards, cannot be
interpreted as reasonable trial strategy.
III. S TANDARD OF R EVIEW
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
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standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W .3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first 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. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
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assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In
other words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
IV. R ECORD IS INSUFFICIENT TO E STABLISH INEFFECTIVENESS
The record before us contains no motion for new trial. Although a motion
for new trial is not a prerequisite to a successful ineffective assistance of
counsel claim, evidence presented at a motion for new trial hearing may offer
insight into defense counsel’s motives behind her actions and may rebut the
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strong presumption of reasonable professional assistance. See Massingill v.
State, 8 S.W.3d 733, 736 (Tex. App.—Austin 1999, pet. ref’d); see also
Robinson v. State, 16 S.W.3d 808, 809–11 (Tex. Crim. App. 2000) (holding
failure to file motion for new trial does not procedurally prohibit appellate claim
of ineffective assistance of counsel).
Here, Edwards accurately points out that despite defense counsel’s claim
to the jury in her opening statement that she would present expert testimony
that Edwards was insane at the time of the offense, counsel presented no such
testimony. The record reflects, however, that Dr. Barry Norman was called as
an expert witness by defense counsel and testified that he had conducted a
sanity examination of Edwards in both 2003 and 2006 in connection with other
charges against Edwards. Dr. Norman testified that on both occasions he had
determined that Edwards was not sane at the time of the charged offenses. Dr.
Norman also testified that Edwards had been diagnosed with Persian Gulf War
Syndrome, post-traumatic stress disorder, and either bipolar I disorder or
schizoaffective disorder bipolar type. He explained that when Edwards was
psychotic he did not know right from wrong, did not know what was going on
around him, and had general difficulty understanding things. Dr. Norman
testified that he had personally observed Edwards in a psychotic episode on
more than one occasion.
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Defense counsel offered, and the trial court admitted, into evidence a
judgment of acquittal in favor of Edwards signed in September 2006; the
acquittal was based on Dr. Norman’s evaluation that Edwards was not sane at
the time of that offense. Defense counsel pointed out during her examination
of Dr. Norman that the present “offense is October, one month later almost to
the date of that judgment of acquittal.”
Defense counsel successfully obtained the admission of defense exhibit
number 4—Edwards’s records from MHMR of Tarrant County. And defense
counsel timely designated Dr. Davis as an expert witness. During trial, while
the jury was out, the following exchange occurred:
[Defense Counsel]: Dr. Davis is still in Lubbock. Carol brought me
a message that Dr. Davis was still in Lubbock.
THE COURT: We’re not stopping.
[Defense Counsel]: I told him that.
THE COURT: Since he got cut loose yesterday and -- there’s a nine
o’clock flight in Amarillo to DFW on two different airlines.
This is the Dr. Davis that was in Canyon, Texas, yesterday?
[Defense Counsel]: Uh-huh.
THE COURT: And yesterday -- Is that yes?
[Defense Counsel]: Yes, ma’am.
THE COURT: And yesterday the Court in Canyon said that he was
cut loose, it was probably two or three in the afternoon, we got the
word that he was through.
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[Defense Counsel]: About three something.
THE COURT: And let me just say, you know, being from Amarillo,
there are many flights from Amarillo to Dallas on at least two
different airlines in the evening and early evening.
[Defense Counsel]: Yes, ma’am.
THE COURT: So did you have him served with a subpoena in this
case?
[Defense Counsel]: Judge, when I spoke with my office --
THE COURT: Just yes or no. Did you ever have him served with
a subpoena –
[Defense Counsel]: No.
THE COURT: -- in this case?
[Defense Counsel]: No.
THE COURT: Then I can be no help to you.
Edwards testified that he was a “war vet,” that he saw “death threats,”
“people trying to kill” him, and “Frankenstein and vampires running around.”
In response to the prosecutor’s question of whether he liked to expose himself
to people, Edwards said, “I’m sad to say I have nymphoic episodes.” Defense
counsel successfully obtained an instruction in the court’s charge that the jury
could find Edwards not guilty of the present offense by reason of insanity.
The court of criminal appeals, in precedent binding on this court, has held
that “trial counsel should ordinarily be afforded an opportunity to explain his
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actions before being denounced as ineffective.” Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003)). Absent such an opportunity, an
appellate court should not find deficient performance unless the challenged
conduct was “so outrageous that no competent attorney would have engaged
in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351 (2003)).
Here, defense counsel was unable to place expert testimony before the
jury that Edwards was insane at the time of the present offense. Her reasons
for not issuing a subpoena for Dr. Davis are not apparent from the record; the
trial court did not let her explain. But defense counsel did place evidence before
the jury that Edwards had been diagnosed with numerous, severe mental
illnesses, had been diagnosed as insane at the time of a previous offense that
occurred in 2005 only one month before the present offense, and had
experienced multiple psychotic episodes during which time he met the legal
definition of insanity. And defense counsel successfully obtained an instruction
in the jury charge authorizing the jury to find Edwards not guilty if they found
that he was insane at the time of the present offense. Based on the record
before us, in light of the strong presumption of reasonable professional
assistance by defense counsel, and in the absence of any opportunity for
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defense counsel to explain her motives concerning her words and conduct
involving the insanity defense, we cannot say that Edwards has met his burden
of showing by a preponderance of the evidence that his counsel’s
representation fell below the standard of prevailing professional norms. See
Thompson, 9 S.W.3d at 813; Randon v. State, 178 S.W.3d 95, 102–03 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); see also Fox v. State, 175 S.W.3d
475, 487–88 (Tex. App.—Texarkana 2005, pet. ref’d) (holding that nothing
presented for review absent explanation as to why counsel did not present
expert testimony); Teixeira v. State, 89 S.W.3d 190, 194 (Tex.
App.—Texarkana 2002, pet. ref’d) (holding that there must be some showing
in the record that expert would have testified in a manner that would have
benefitted defendant). We overrule Edwards’s sole issue.
V. C ONCLUSION
Having overruled Edwards’s sole issue on appeal, we affirm the trial
court’s judgment.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: January 15, 2009
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-025-CR
RUBEN JAMES EDWARDS, JR. APPELLANT
A/K/A RUBEN JAMES EDWARDS
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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DISSENTING OPINION
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There is no defensive strategy to explain a defense lawyer’s telling the
jury that the defendant’s defense is insanity and then calling no expert in
support of the defense but, rather, calling a witness or witnesses to defeat the
defense. I, therefore, would affirm Appellant’s sole point, reverse the trial
court’s judgment, and remand this case to the trial court for a new trial.
LEE ANN DAUPHINOT
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
PUBLISH
DELIVERED: January 15, 2009
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