Milton Edward Pollock A/K/A Milton Pollock v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00514-CR
MILTON EDWARD POLLOCK A/K/A APPELLANT
MILTON POLLOCK
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury convicted Appellant Milton Edward Pollock a/k/a Milton Pollock of
two counts of sexual assault of a child and one count of indecency with a child
and assessed his sentence at seven years‘ confinement for each sexual assault
conviction and five years‘ confinement for the indecency conviction. The trial
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See Tex. R. App. P. 47.4.
court sentenced him accordingly, ordering that the five-year sentence for
indecency run consecutively to the seven-year sentence for the first assault
conviction. In a single point, Pollock claims that he received ineffective
assistance of counsel. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2002, Pollock moved from Boston, Massachusetts to Arlington, Texas
with his wife Wendy, their three children, and K.D., Wendy‘s child from a previous
relationship. K.D. was fifteen at the time. K.D. moved out of Pollock and her
mother‘s house when she was eighteen years old, and two or three years later,
she made an outcry that Pollock had sexually assaulted her beginning some time
before she was twelve years old and ending when she was sixteen years old.
At Pollock‘s trial, K.D. testified that Pollock had tried to penetrate her
―vagina‖ with his penis on multiple occasions when she was fifteen and sixteen
years old, that he had her perform oral sex on him, and that he had fondled her
breasts and sexual organ. The defense called two witnesses to testify—Pollock
and his wife Wendy. Pollock testified that he had occasionally rubbed K.D.‘s
back but that he had never touched her inappropriately. Wendy testified that
K.D. had never indicated to her that anything inappropriate was going on
between K.D. and Pollock.
III. EFFECTIVE ASSISTANCE OF COUNSEL
In his sole point, Pollock claims that he did not receive effective assistance
of counsel as guaranteed by the Sixth Amendment because his trial counsel
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failed to call certain witnesses during both the guilt-innocence and punishment
stages of trial.
A. Standard of Review
We apply a two-pronged test to ineffective assistance of counsel claims.
See 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). To establish
ineffective assistance of counsel, an 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 been different.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Salinas, 163 S.W.3d at 740;
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); Hernandez v. State, 988
S.W.2d 770, 770 (Tex. Crim. App. 1999). There is no requirement that we
approach the two-pronged inquiry of Strickland in any particular order, or even
address both components of the inquiry if the defendant makes an insufficient
showing on one component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
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.
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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. 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 upon unclear portions of the record.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
B. Record is Insufficient to Establish Ineffectiveness
Here, Pollock complains that defense counsel was ineffective for not
calling his daughter T.P. to testify during the guilt-innocence phase of his trial; he
argues that T.P. ―would have testified to the fact that her half-sister [K.D.] made
up the entire story in order[] to justify [T.P.]‘s own false claims of sexual assault
against [Pollock].‖ Pollock further complains that during the punishment phase of
trial, defense counsel was ineffective for calling only one of Pollock‘s friends and
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the court‘s probation officer to testify although Pollock‘s ―other friends and family
were waiting in the hallway outside the courtroom for their opportunity to testify.‖
Although Pollock filed a motion for new trial, he did not complain of
ineffective assistance in his motion, and no hearing was held on the motion.
Thus, the record is silent as to trial counsel‘s trial strategy for not calling these
witnesses to testify. Generally, a silent record that provides no explanation for
counsel=s actions will not overcome the strong presumption of reasonable
assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003);
Edwards v. State, 280 S.W.3d 441, 445 (Tex. App.––Fort Worth 2009, pet. ref=d).
Trial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective. Goodspeed v. State, 187 S.W.3d 390,
392 (Tex. Crim. App. 2005) (explaining that absent such an opportunity, an
appellate court should not find deficient performance unless the conduct was ―‗so
outrageous that no competent attorney would have engaged in it‘‖) (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537
U.S. 1195 (2003)).
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 defense counsel to explain his strategy for not calling the
complained-of witnesses, we cannot say that Pollock 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
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S.W.3d at 813; Edwards, 280 S.W.3d at 445. Because Pollock has not satisfied
the first Strickland prong, we overrule his sole issue.
IV. CONCLUSION
Having overruled Pollock‘s sole issue, we affirm the trial court‘s judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 15, 2011
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