Christopher D'Wayne Wiley v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-07-00436-CR ____________________

CHRISTOPHER D'WAYNE WILEY, Appellant

V. THE STATE OF TEXAS, Appellee

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On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A-060730-R

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MEMORANDUM OPINION

A jury found Christopher D'Wayne Wiley guilty of aggravated assault. After Wiley pled true to habitual offender allegations, the jury assessed a punishment of thirty years in the Texas Department of Criminal Justice, Correctional Institutions Division. In two appellate issues, Wiley contends he received ineffective assistance at trial and that the trial court erred in excluding evidence of insanity in the guilt phase of the trial. We affirm the judgment.

Wiley argues his trial counsel was ineffective for failing to properly investigate, prepare for, and present evidence to support an insanity defense. To show ineffective assistance, Wiley must demonstrate that: (1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 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). A claim of ineffective assistance must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). "Failure of appellant to make either of the required showings of deficient performance and sufficient prejudice defeats the claim of ineffective assistance." Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Because the reasonableness of counsel's decisions and strategy often involves facts that do not appear in the appellate record, the record on direct appeal will generally not be sufficient to sustain a claim of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

Wiley did not develop a record supporting his ineffective assistance claim on motion for new trial. On appeal, he argues that no competent counsel could neglect to timely file notice of intent to raise the affirmative defense of insanity. When defense counsel offered a psychiatrist's testimony and emergency room records in a bill of exception, the prosecutor made it clear that he was not objecting to a lack of timely notice and that the only objection being made at the time of the offer was to relevance. Wiley concedes the trial court excluded the evidence on grounds of relevance in his second issue, which argues the trial court abused its discretion because the evidence was relevant to the issues of insanity and to negate specific intent to commit aggravated assault.

Outside the presence of the jury, a psychiatrist testified that he treated Wiley in the hospital emergency room on March 7, 2007. The psychiatrist decided Wiley met the criteria for admission and made a preliminary diagnosis of paranoid schizophrenia that he based on a report of three prior hospitalizations and Wiley's account of hearing voices. The psychiatrist stated that he was not treating Wiley in 2005 or 2006 . . . and that he could not extrapolate Wiley's condition in 2007 to what his condition was on June 7, 2005, when Wiley committed the aggravated assault. The psychiatrist testified he is not qualified to give an opinion as to whether Wiley was sane at the time of the alleged offense and that he offered no opinion in that regard. ⁽¹⁾ He also agreed that, while some people with schizophrenia have problems differentiating right from wrong, there are others who are perfectly capable of differentiating between right and wrong at any given time.

Defense counsel also proffered the hospital records from Wiley's hospitalization from March 7, 2007, through March 8, 2007. The trial court sustained the State's relevance objection. The records were admitted into evidence in the punishment phase of the trial. Also during the punishment phase, Wiley testified that he was first diagnosed as schizophrenic as a teenager. Wiley testified that he hears voices, has suicidal tendencies, and hurts those around him. Wiley also testified that he was not taking medication at the time of the offense.

"Evidence of mental disease or defect does not, standing alone, equate to evidence of insanity." Kelly v. State, 195 S.W.3d 753, 757 (Tex. App.--Waco 2006, pet. ref'd). The evidence in the record in this case, including the offer of proof and the evidence adduced in the punishment phase, would not support a charge on the affirmative defense of insanity. See id. at 757. Thus, the appellant has not shown that the late filing of the notice of intent to raise the affirmative defense of insanity prejudiced the defense of his case.

Wiley also argues that a competent attorney would have presented further evidence of the three prior psychiatric hospitalizations. "Counsel's strategic choices made after a less than complete investigation of the law and facts relevant to plausible options are considered reasonable, on a claim of ineffective assistance, precisely to the extent that reasonable professional judgment supports limitations on the investigation." Randon v. State, 178 S.W.3d 95, 102 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Although the appellate record suggests Wiley had been previously hospitalized and also suggests that defense counsel had not obtained records of prior hospitalizations prior to trial, the record tells us nothing about the extent of the investigation conducted by counsel. Furthermore, without the records, we cannot determine whether such records exist or whether the records would have been admissible at trial or helpful to the defense. On this record, Wiley cannot overcome the presumption that counsel provided reasonable assistance or show that counsel's lack of investigation prejudiced Wiley's defense. See Thompson, 9 S.W.3d at 813-14; Freeman v. State, 167 S.W.3d 114, 120 (Tex. App.--Waco 2005, no pet.). We overrule issue one.

In his second issue, Wiley contends the trial court abused its discretion in excluding the psychiatrist's testimony and the records from the March 2007 hospitalization. He argues this evidence would have assisted the jury in determining whether he was in fact sane at the time of the offense and would have allowed him to negate the specific intent required to commit aggravated assault. As we have already noted, however, the psychiatrist was not aware of what the appellant's mental condition might have been in 2005 and he could not offer an opinion on whether Wiley was sane or insane when he committed the offense. The trial court does not abuse its discretion by excluding expert testimony that would not assist the trier of fact. See Nejnaoui v. State, 44 S.W.3d 111, 117-18 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (Trial court did not err in excluding psychiatrist's testimony where the witness last examined the defendant seven months before the offense, lacked personal knowledge of the appellant's medical condition at the time of the shooting, and the defendant's mental condition at the time of the shooting was not established by other evidence.). Likewise, the medical records from the 2007 emergency room visit, which occurred on the date Wiley's trial was to have commenced, do not address Wiley's mental condition or state of mind in 2005. Under the circumstances present in this case, it was not an abuse of discretion for the trial court to exclude the evidence. We overrule issue two and affirm the judgment.

AFFIRMED.

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STEVE McKEITHEN

Chief Justice

Submitted on December 29, 2008

Opinion Delivered January 14, 2009

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. We note that because this testimony has no relevance to appellant's state of mind on the date of the offense, the opinion of the Court of Criminal Appeals in Ruffin v. State does not impact our consideration in this case. See Ruffin v. State, 2008 WL 5169555 (Tex. Crim. App. Dec. 10, 2008) (not yet reported).