Benjamin Franklin Forsyth A/K/A Benjamin Franklin Forsyth, Jr. v. State ( 2012 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00321-CR
    BENJAMIN FRANKLIN FORSYTH                                           APPELLANT
    A/K/A BENJAMIN FRANKLIN
    FORSYTH, JR.
    V.
    THE STATE OF TEXAS                                                       STATE
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    FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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    MEMORANDUM OPINION1
    ----------
    I. Introduction
    In four issues, Appellant Benjamin Franklin Forsyth appeals his convictions
    for possession of a controlled substance and unlawful possession of a firearm by
    a felon. We affirm.
    1
    See Tex. R. App. P. 47.4.
    II. Factual and Procedural Background
    Based on an informant’s tip, Hood County peace officers executed a
    search warrant to search Deborah Hudgins’s two-story house for the presence of
    methamphetamine. At the time of the search, Forsyth was renting the upstairs
    portion of the house where the officers found .22 caliber ammunition and drug
    paraphernalia. In a downstairs closet, officers found .22 caliber shells inside of a
    .22 caliber rifle. The State brought two charges against Forsyth, who pleaded
    guilty to possession of less than one gram of methamphetamine but not guilty to
    possession of a firearm by a felon.
    Forsyth’s trial counsel filed a motion for continuance because Hudgins,
    “the sole and essential defense witness,” would be unavailable for the original
    trial setting. The motion stated that Hudgins expressed a willingness to testify
    without the necessity of a subpoena. The trial court granted this motion and
    reset the case for July. Knowing that the trial had been reset for July 7, 2011, but
    not knowing what time the trial was scheduled to begin, Hudgins assumed that
    the trial would begin at 9:00 a.m. and arrived at the courthouse at 8:30 a.m.
    However, courthouse security officers told her that there were no felony trials that
    morning,2 and so Hudgins left to take her grandchildren swimming.
    The State’s witnesses, Hood County peace officers, were the only
    witnesses to testify at trial. The jury found Forsyth guilty of both charges and
    2
    Hudgins also testified that the officers told her that “there wasn’t any court
    that day.”
    2
    assessed a $10,000 fine for each conviction as well as concurrent sentences of
    two and ten years’ confinement for the drug and firearm convictions, respectively.
    Forsyth filed a motion for new trial alleging, in part, that his trial counsel had been
    ineffective for failing to subpoena Hudgins. To the motion, Forsyth attached an
    affidavit, not from his trial counsel but from his appellate counsel. In this affidavit,
    appellate counsel averred that trial counsel had told Hudgins to appear, that
    Hudgins arrived at the courthouse, and that she was turned away by courthouse
    security officers.
    At the hearing on the motion for new trial, Hudgins testified that she had
    kept the rifle, which belonged to her nephew, hidden in her downstairs closet and
    that she did not believe that Forsyth knew about the rifle because he was only
    permitted to enter the lower portion of the house to do laundry. Forsyth also
    called his parole officer, Darren Olsovsky, who testified that he had visited
    Forsyth’s residence several times but had never entered the downstairs portion
    because the upstairs portion had a separate entrance. The trial court denied the
    motion for new trial, and this appeal followed.
    III. Due Process and Rule 21.3(e)
    In his third issue, Forsyth claims that the trial court abused its discretion by
    denying his motion for new trial because he was denied federal due process
    when courthouse security officers turned Hudgins away from the courthouse.
    Because it is unclear from his argument whether he is claiming a due process
    violation or claiming that the trial court abused its discretion by failing to grant his
    3
    motion for new trial under rule 21.3(e), we will address both. See Tex. R. App. P.
    21.3(e).
    The proper procedural due process analysis is two-tiered. Rodriguez v.
    State, 
    21 S.W.3d 562
    , 568 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (op.
    on reh’g) (citing Ex parte Montgomery, 
    894 S.W.2d 324
    , 327 (Tex. Crim. App.
    1995)), cert. denied, 
    532 U.S. 995
    (2001). First, the reviewing court must decide
    whether a protected liberty or property interest exists. 
    Id. If this
    interest exists,
    the court must ask the second question, which is whether sufficient procedural
    safeguards ensure that there is no arbitrary interference with the interest. 
    Id. Here, Forsyth
    does not address the second tier of this inquiry; he does not
    claim that his subpoena power or his right to request a continuance was in any
    way abridged. See 
    id. Indeed, Forsyth
    admits that his trial counsel chose not to
    subpoena Hudgins, and there is no evidence in the record that Forsyth tried to
    move for a continuance after Hudgins failed to appear. See 
    id. (“The fact
    that
    appellant’s reliance [on a witness’s promise to appear] proved to be misplaced
    does not constitute interference with his right to compulsory process.”). In any
    event, Forsyth’s notice and opportunity to be heard at the hearing on his motion
    for new trial was a sufficient procedural safeguard to protect his liberty interest.
    See 
    id. (noting that
    deprivation of a protected interest requires notice and an
    opportunity to be heard and determining that hearings on appellant’s motion for
    continuance and motion for new trial provided sufficient safeguards).
    4
    Further, to the extent that Forsyth claims that the trial court abused its
    discretion by denying his motion for new trial in violation of rule 21.3(e), the
    granting or denying of a motion for new trial lies within the trial court’s discretion.
    Lewis v. State, 
    911 S.W.2d 1
    , 7 (Tex. Crim. App. 1995). When reviewing a trial
    court’s denial of a motion for new trial, we do not substitute our judgment for that
    of the trial court; rather, we consider whether its decision was arbitrary or
    unreasonable. 
    Id. Rule 21.3(e)
    requires, in part, that a motion for new trial must be granted
    “when a material defense witness has been kept from the court by force, threats,
    or fraud.” Tex. R. App. P. 21.3(e). However, Forsyth does not argue on appeal,
    nor did he argue in his motion for new trial, that anyone kept Hudgins away from
    the court by force, threats, or fraud, and the record does not support such a
    claim. To the contrary, although Forsyth has maintained that courthouse security
    officers gave Hudgins misinformation, he does not claim, and there is no
    evidence to show, that they did so fraudulently.         Because Forsyth failed to
    establish entitlement to relief under rule 21.3(e), the trial court did not abuse its
    discretion by denying Forsyth’s motion for new trial, we overrule his third issue.
    See 
    Rodriguez, 21 S.W.3d at 567
    ; 
    Lewis, 911 S.W.2d at 7
    .
    Forsyth’s fourth issue is the same as his third except that he argues that
    he was deprived of due course of law under the Texas constitution. However,
    Forsyth only raised his constitutional challenges below in his motion for new trial,
    and in that motion, he failed to argue that the state due course of law provision
    5
    provides greater protection that the federal due process clause. Therefore, he
    has failed to preserve this complaint for appellate review. See Pena v. State,
    
    285 S.W.3d 459
    , 464 (Tex. Crim. App. 2009) (holding that by failing at trial to
    distinguish the rights and protections afforded under the Texas due course of law
    provision from those provided under the Fourteenth Amendment, appellant failed
    to preserve for appellate review his complaint that the due course of law
    provision provides greater protection). Accordingly, we overrule Forsyth’s fourth
    issue.
    IV. Ineffective Assistance of Counsel
    In his first issue, Forsyth claims that the trial court abused its discretion by
    denying his motion for new trial because his trial counsel was ineffective under
    the United States Constitution for failing to subpoena Forsyth’s sole witness.
    Forsyth’s second issue is the same except that he claims that his trial counsel
    was ineffective under the Texas constitution. Because Texas’s right to counsel
    provision is no more protective than its federal counterpart, Hernandez v. State,
    
    988 S.W.2d 770
    , 772 (Tex. Crim. App. 1999), we will address his first and
    second issues together.
    A. Standard of Review
    To establish ineffective assistance of counsel, the appellant must show by
    a preponderance of the evidence that his counsel’s representation fell below the
    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
    6
    been different. Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    ,
    2064 (1984); Davis v. State, 
    278 S.W.3d 346
    , 352 (Tex. Crim. App. 2009).
    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 v. State, 
    9 S.W.3d 808
    , 813 (Tex. Crim. App. 1999). 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
    v. State, 
    163 S.W.3d 734
    , 740 (Tex. Crim. App. 2005); Mallett v. State, 
    65 S.W.3d 59
    , 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
    position on direct appeal to fairly evaluate the merits of an ineffective assistance
    claim. 
    Salinas, 163 S.W.3d at 740
    ; 
    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 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
    7
    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 with a
    reliable result. 
    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 in which the result is being
    challenged. 
    Id. at 697,
    104 S. Ct. at 2070.
    B. Analysis
    Forsyth argues that trial counsel was ineffective for failing to subpoena and
    call3 Hudgins because Hudgins was available and her testimony would have
    benefitted Forsyth. See King v. State, 
    649 S.W.2d 42
    , 44 (Tex. Crim. App. 1983)
    (holding that failure to call a particular witness will not be considered deficient
    performance absent a showing that the witness was available and that the
    defendant would have benefitted from the witness’s testimony).
    3
    Forsyth does not distinguish his contention that trial counsel failed to
    subpoena Hudgins from his contention that trial counsel failed to call her, so we
    will not treat the two differently. See Tex. R. App. P. 47.1.
    8
    There is little question that Hudgins was available on the day of the trial
    and that her testimony would have benefitted Forsyth, but this does not mean
    that trial counsel’s failure to subpoena her constituted ineffective assistance
    because Forsyth has failed to overcome the presumption that trial counsel’s
    decision not to subpoena Hudgins “might be considered sound trial strategy.”
    See 
    Strickland, 466 U.S. at 689
    , 104 S. Ct. at 2065. Indeed, the decision to
    subpoena a defense witness is considered a matter of trial strategy. Robertson
    v. State, No. 01-02-00046-CR, 
    2002 WL 31236391
    , at *1 (Tex. App.—Houston
    [1st Dist.] 2002, no pet.) (not designated for publication) (“Placing a witness
    under orders of the trial court, rather than merely asking the witness to return
    voluntarily, might cause apprehension, resentment, or even injurious testimony
    on the part of a witness alienated by the coercive action.”); see Pineda v. State, 
    2 S.W.3d 1
    , 6 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (finding no authority
    for the proposition that failure to subpoena a witness is ineffective assistance).
    By not addressing trial counsel’s motives, Forsyth appears to take the
    position that regardless of motive, trial counsel’s failure to subpoena Hudgins
    was “so outrageous that no competent attorney would have engaged in it.” See
    Goodspeed v. State, 
    187 S.W.3d 390
    , 392 (Tex. Crim. App. 2005). However,
    this is not a case in which trial counsel wholly failed to contact a defense witness.
    Cf. Shelton v. State, 
    841 S.W.2d 526
    , 526–27 (Tex. App.—Fort Worth 1992, no
    pet.) (holding, without any evidence of counsel’s trial strategy, that counsel’s
    failure to contact a key defense witness was ineffective). “Rather, this is a case
    9
    in which the . . . witness promised to appear and testify at trial and counsel
    reasonably expected [her] to appear, but the witness nonetheless did not.”
    
    Pineda, 2 S.W.3d at 6
    ; see Robertson, 
    2002 WL 31236391
    , at *1 (holding that
    even though trial counsel had disavowed any trial strategy in not requesting
    subpoenas, his belief that the witness would appear was not error, much less
    conduct falling below objective standards of reasonableness).
    Therefore, even if trial counsel’s only reason for failing to subpoena
    Hudgins was his belief that she would appear, Forsyth has not overcome the
    presumption that this fell within the wide range of reasonable professional
    assistance. See 
    Strickland, 466 U.S. at 687
    , 104 S. Ct. at 2064; 
    Salinas, 163 S.W.3d at 740
    . Because Forsyth did not satisfy his burden to meet the first
    prong of Strickland, we need not address the second prong. See 
    Strickland, 466 U.S. at 697
    , 104 S. Ct. at 2069. Therefore, we hold that trial counsel was not
    ineffective, see id. at 
    687, 104 S. Ct. at 2064
    , and we overrule Forsyth’s first and
    second issues.
    10
    V. Conclusion
    Having overruled each of Forsyth’s issues, we affirm the trial court’s
    judgment.4
    PER CURIAM
    PANEL: MCCOY, MEIER, and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: July 12, 2012
    4
    Our holding, of course, does not foreclose Forsyth’s right to pursue a
    post-conviction writ upon the conclusion of this appeal. See Rylander v. State,
    
    101 S.W.3d 107
    , 110 (Tex. Crim. App. 2003) (recognizing that “an application for
    a writ of habeas corpus is the more appropriate vehicle to raise ineffective
    assistance of counsel claims”).
    11