Donta Daray Aubrety v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00708-CR
Donta Daray AUBRETY,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR5415
Honorable Ron Rangel, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 2, 2011
MOTION TO WITHDRAW GRANTED; AFFIRMED AS REFORMED
A jury found appellant Donta Daray Aubrety guilty of robbery and found the
enhancement allegations true. 1 The trial court sentenced Aubrety to twenty-seven years
confinement. Aubrety’s appointed appellate counsel filed a brief in compliance with Anders v.
California, 386 U.S. 738 (1967) and a motion to withdraw. Thereafter, Aubrety filed a pro se
1
The judgment reflects Aubrety pled “true” to the enhancement allegations. This is incorrect. Accordingly, we will
reform the judgment to reflect that Aubrety pled “not true” to the enhancement allegations.
04-10-00708-CR
brief in which he contends he received ineffective assistance of counsel. We affirm the trial
court’s judgment as reformed.
BACKGROUND
The record shows the complainant, Katherine Klingensmith, went to a football game with
a friend and Aubrety, who was the friend’s boyfriend. After the game, Klingensmith went to the
home shared by her friend and Aubrety. According to Klingensmith, Aubrety was in a bad
mood, which had begun while they were at the game. Aubrety wanted Klingensmith to call her
ex-boyfriend. When she refused, Aubrety took her cell phone. Both Klingensmith and her
friend asked Aubrety to return the phone, but he refused.
When Aubrety refused to return the phone, Klingensmith admitted she attempted to hit
Aubrety, missed, and then tried again. On her second attempt, she hit him in the face, prompting
Aubrety to punch Klingensmith twice in the face. The two then struggled over Klingensmith’s
purse. Aubrety gained control of the purse and threw it into the yard. He then retrieved the
purse and put it in his car. When he tried to leave, Klingensmith began “punching him in the
back of his head,” insisting he return her purse and phone. Aubrety struck Klingensmith again,
knocking her to the ground.
Aubrety left in his car, and Klingensmith and her friend followed in their own vehicle.
Eventually, the police were contacted and a robbery report was filed. Although Aubrety gave the
purse to a mutual friend who returned it to Klingensmith, Klingensmith testified Aubrety did not
return several items.
At trial, Aubrety testified and admitted taking Klingensmith’s phone and her purse
without permission; he also admitting hitting Klingensmith. However, Aubrety explained he did
not intend to rob Klingensmith and only took the phone to prevent Klingensmith from calling
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police as he was on “parole for family violence.” He explained he took the purse only to retrieve
some marijuana he had placed in the purse earlier in the evening. He stated he hit Klingensmith
because she put herself in “a man’s position” by hitting him first.
The jury found Aubrety guilty of robbery. After the trial court entered judgment,
Aubrety perfected this appeal. As noted above, his court-appointed appellate attorney filed an
Anders brief, stating she could find no arguable grounds for the appeal and asking to withdraw as
counsel. As is his right, Aubrety filed a pro se brief. Accordingly, we will review those
contentions raised by Aubrety in his brief.
ANALYSIS
In his brief, Aubrety raises a single issue in which he contends his trial counsel was
ineffective, describing several errors allegedly committed by trial counsel. Aubrety’s brief is not
a model of clarity, and as best we can determine, he contends his counsel was ineffective
because: (1) he failed to file a motion to suppress the out-of-court identification of Aubrety,
which tainted the photo identification; (2) he refused to sign or set certain pretrial motions for
hearing that were prepared by Aubrety, including a speedy trial motion; (3) he allowed the court
to hold a hearing in Aubrety’s absence concerning the State’s motion to amend the indictment to
include an alleged alias; and (4) he failed to properly cross-examine Klingensmith to point out
inconsistencies in her testimony and statements to police, and compounded the error by
neglecting to highlight the inconsistencies in the closing argument.
To establish ineffective assistance of counsel, a defendant must prove by a preponderance
of the evidence that his trial counsel’s performance was deficient and the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 694 (1984); Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). To prove deficient performance, the defendant must show
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counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that “counsel’s conduct
fell within a wide range of reasonable representation,” see Salinas v. State, 163 S.W.3d 734, 740
(Tex. Crim. App. 2005), and to overcome this presumption, the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In other words,
ineffectiveness must be firmly founded in the record. Id.
Assuming the defendant is able to demonstrate ineffectiveness, he must then prove
prejudice by showing there is a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. at 812. A reasonable
probability is one sufficient to undermine confidence in the outcome of the trial. Id.
If the defendant fails to prove both Strickland prongs, his ineffective assistance of
counsel claim is defeated. Id. at 813. Absent proof of both prongs, we cannot conclude the
conviction resulted from a breakdown in the adversarial process that rendered the outcome
unreliable. Id. We will look to the totality of the representation and the particular circumstance
in each case in evaluating counsel’s effectiveness. Id.
We have reviewed the record in this case and find it is silent as to why Aubrety’s trial
counsel made the decisions and took the courses of action complained of by Aubrety. The
record provides no discernible motivation behind counsel’s decisions–whether they were of
“strategic design or the result of negligent conduct.” See id. at 814. As allegations of
ineffectiveness must be firmly founded in the record, we hold Aubrety has failed to rebut the
presumption that his trial counsel acted reasonably with regard to all of Aubrety’s specific
complaints. “Failure to make the required showing of . . . deficient performance . . . defeats the
ineffectiveness claim.” Strickland, 466 U.S. at 700.
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In this case, as in a majority of cases in which counsel’s performance is challenged, the
record is simply insufficiently developed and does not adequately reflect the alleged failings of
trial counsel. Id. at 813-14. Moreover, this is not a case where the alleged errors committed by
counsel have previously been determined to constitute ineffectiveness per se. See, e.g., Jackson
v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985) (failure of trial counsel to advise appellant
that trial court should assess punishment), modified on other grounds on remand from United
States Supreme Court, 766 S.W.2d 518 (Tex. Crim. App. 1998); Ex parte Felton, 815 S.W.2d
733, 735 (Tex. Crim. App. 1991) (failure to challenge void prior conviction used to enhance
punishment).
Given the strong presumption that trial counsel acted reasonably and professionally, and
the absence of anything in the record before us to overcome this presumption, we overrule
Aubrety’s ineffective assistance of counsel claim.
CONCLUSION
Based on the foregoing, we hold Aubrety has failed to prove by a preponderance of the
evidence that his counsel’s performance was deficient. Given Aubrety has failed to overcome
the first prong of Strickland, we need not determine whether the result would have been different
but for counsel’s actions. We note, as we did above, that the judgment incorrectly states Aubrety
pled “true” to the enhancement paragraphs. Accordingly, we reform the judgment to reflect that
Aubrety pled “not true,” but as reformed, affirm the trial court’s judgment. We further grant the
motion to withdraw filed by Aubrety’s appointed appellate counsel.
Marialyn Barnard, Justice
Do Not Publish
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