Matthew Duane Garman v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00019-CR
MATTHEW DUANE GARMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In two issues, Matthew Duane Garman challenges the effectiveness of his
trial counsel and the trial court‟s ruling limiting his cross-examination of a witness.
We affirm.
Background
Appellant entered an open plea of guilty to aggravated assault with a
deadly weapon arising from his pointing a gun at Jennie Estep-Ford outside of a
1
See Tex. R. App. P. 47.4.
party at her house. The trial court deferred punishment for the preparation of a
presentence investigation report (PSI). At the subsequent hearing for sentencing
purposes, the State presented evidence that a person in appellant‟s truck2 shot at
Deborah Estep‟s3 house right after the occurrence of the charged offense; Estep
was in the house at the time with her fourteen-year-old son and two-year-old
granddaughter. Information about this extraneous offense was included in the
PSI. Appellant‟s trial counsel did not object to admission of the PSI, nor had he
requested that the State give notice of its intent to introduce extraneous offenses
relevant to punishment. The trial court assessed appellant‟s punishment at ten
years‟ confinement and sentenced him accordingly.
Trial Counsel Was Not Ineffective
In his first issue, appellant claims that his counsel was ineffective for failing
to request that the State give notice of its intent to introduce extraneous offenses,
failing to object to the admission of the PSI or the part of the PSI discussing the
drive-by shooting, and failing to object to testimony about the drive-by shooting at
the hearing.
2
A witness outside of Estep‟s house saw the truck during the drive-by; he
described what it looked like and stated that he knew it was appellant‟s truck.
Estep-Ford was not at her mother‟s house during the drive-by, but her description
of appellant‟s truck matched the witness‟s.
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Deborah Estep is Ford-Estep‟s mother.
2
Standard of Review
To establish ineffective assistance of counsel, 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 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); Hernandez v. State, 988
S.W.2d 770, 770 (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.”
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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).
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.
Analysis
Appellant did not file a motion for new trial, so there is no record of trial
counsel‟s motives at trial. Although the court of criminal appeals “has been
hesitant to „designate any error as per se ineffective assistance of counsel as a
matter of law,‟ it is possible that a single egregious error of omission or
commission by . . . counsel constitutes ineffective assistance.” Thompson, 9
4
S.W.3d at 813 (quoting Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App.
1985), vacated and remanded on other grounds, 475 U.S. 1114 (1986)); see Ex
parte Harrington, 310 S.W.3d 452, 459 & n.28 (Tex. Crim. App. 2010). Here,
however, counsel‟s failure to request notice could have occurred for a myriad of
reasons; counsel may have already received notice, oral or otherwise. See
Hinson v. State, 166 S.W.3d 331, 332 (Tex. App.––Waco 2005, pet. ref‟d); Autry
v. State, 27 S.W.3d 177, 182 (Tex. App.––San Antonio 2000, pet. ref‟d).
Appellant acknowledges that counsel had notice of the uncharged extraneous
offense in the PSI. Because of the undeveloped state of the record, we cannot
say that counsel‟s failure to request such notice was ineffective per se. See
Autry, 27 S.W.3d at 182; Rodriguez v. State, 981 S.W.2d 357, 359 (Tex. App.––
San Antonio 1998, no pet.).
Appellant contends that this is one of the rare cases that reveals no trial
strategy for counsel‟s failure to object to the uncharged extraneous offense
evidence; he contends that counsel appeared unaware of his right to object.
According to appellant, he can find “no coherent trial strategy in allowing the
State to introduce an extraneous offense involving gunfire and 3 innocent
potential victims, including two children.”
To show ineffective assistance for the failure to object, an appellant must
show that the trial judge would have committed error by overruling the objection.
Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Alexander v. State,
282 S.W.3d 701, 705 (Tex. App.––Houston [14th Dist.] 2009, pet. ref‟d). Here,
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appellant never argues what the effect of an objection to the evidence would
have been, much less whether such an objection would have been successful.
The court of criminal appeals has held that “Article 37.07 does not prohibit a trial
court, as a sentencing entity, from considering extraneous misconduct evidence
in assessing punishment just because the extraneous misconduct has not been
shown to have been committed by the defendant beyond a reasonable doubt, if
that extraneous misconduct is contained in a PSI.” Smith v. State, 227 S.W.3d
753, 763 (Tex. Crim. App. 2007). Thus, the trial court would not have erred by
overruling an objection to the PSI because of inclusion of information about the
extraneous offense, regardless of the quantum of evidence presented about the
extraneous drive-by. See id.; see also Stringer v. State, 309 S.W.3d 42, 47–48
(Tex. Crim. App. 2010) (holding that Crawford does not apply to PSI in noncapital
case).
Moreover, after reviewing the testimony about the extraneous drive-by, we
conclude that it was also admissible during the hearing on sentencing because
the evidence was sufficient to prove appellant‟s involvement in the drive-by
beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 37.07, §
3(a)(1) (Vernon Supp. 2010). The trial judge was not required to believe
testimony from appellant and his father that appellant was not involved in the
shooting. Thus, the trial judge would not have erred by overruling any objection
to that evidence either. We conclude and hold that appellant has not shown that
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his trial counsel was ineffective for failing to object to the PSI or to evidence
about the extraneous drive-by included in the PSI or presented at trial.
We overrule appellant‟s first issue.
Failure to Preserve Confrontation Clause Complaint
In his second issue, appellant contends that the trial court committed
constitutional error by denying him the right to cross-examine Estep-Ford about
whether her boyfriend, who was at the party the night of both offenses, had ever
shot someone. Appellant contends that the trial court‟s ruling violated his right
under the Confrontation Clause. See U.S. Const. amend. VI. However,
appellant failed to raise a Confrontation Clause challenge in the trial court. Thus,
he failed to preserve this complaint for our review. Reyna v. State, 168 S.W.3d
173, 179–80 (Tex. Crim. App. 2005); Fox v. State, 175 S.W.3d 475, 483–84
(Tex. App.––Texarkana 2005, pet. ref‟d). We overrule appellant‟s second issue.
Conclusion
Having overruled both of appellant‟s issues, we affirm the trial court‟s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 28, 2010
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