Taylor Guillory v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed November 18, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00209-CR
TAYLOR GUILLORY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1596766
MEMORANDUM OPINION
Appellant Taylor Guillory challenges his conviction for aggravated assault
with a deadly weapon, asserting that he received ineffective assistance of counsel
and the trial court erred in failing to grant him a new trial. Concluding that
appellant has not demonstrated he received ineffective assistance on this
undeveloped record on direct appeal, we affirm.
Background
Eleven-year-old D.G. was walking home with a friend one afternoon. As he
passed by appellant’s house, he observed appellant with an assault rifle and a
shotgun. According to D.G., appellant put the assault rifle into his car, and then
aimed the shotgun at D.G. and his friend. D.G. testified that he told his friend to
run home and D.G. himself ran home. Appellant followed D.G. with the gun site as
D.G. ran. D.G. ran into his home and told his stepfather what happened and that he
was afraid.
Two days later, police officers arrived at appellant’s home and seized a
shotgun from appellant’s bedroom. The officers did not have a search warrant, but
an officer testified that appellant’s mother consented to the search. He conceded
that she did not sign the standard consent to search form. Appellant’s mother also
testified as a defense witness. She told the jury that she initially refused to allow
officers to search her home and did not consent to the search until an officer
threatened to arrest her and she was placed into a patrol car in handcuffs.
During the punishment phase of trial, D.G.’s mother testified that appellant
came to their house, asked her and her husband why they were pressing charges,
and accused D.G. of lying. According to D.G.’s mother, after they told appellant
“that they were going to take it to court,” appellant “became a little more hostile,
throwing his hands around, pacing,” and after they asked him to leave, appellant
“continued to mumble and walk back and forth in front of [their] home” before he
left. Defense counsel objected on the basis that he had not received notice of the
State’s intention to elicit testimony about this incident, but after he admitted that he
had not requested notice, the trial court overruled the objection.1
1
The prosecutor informed the trial court that notice of this incident had been provided to
appellant.
2
D.G.’s mother also told the jury that appellant previously had threatened to
kill her husband. The trial court sustained defense counsel’s hearsay objection to
this testimony and instructed the jury to disregard it.2 D.G.’s mother subsequently
testified without objection that her husband was in “an extreme emotional state”
when he told her he received a death threat from appellant. This incident was not
included in the State’s notice of extraneous offenses and bad acts.
Discussion
In four issues, appellant contends that he received ineffective assistance on
the grounds that his trial attorney (1) did not file a pretrial motion to suppress or
object to the admission at trial of a firearm seized from appellant’s home, (2) failed
to investigate the State’s punishment case or request notice of extraneous offenses
the State intended to introduce during the punishment phase of trial, and (3) failed
to investigate or present mitigating evidence of appellant’s mental health history
during the punishment phase of trial.
To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) trial counsel’s performance was deficient because it fell below an
objective standard of reasonableness; and (2) the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State,
343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The failure to satisfy one prong of
the Strickland test negates a court’s need to consider the other prong. Lopez, 343
S.W.3d at 142.
To satisfy the first prong, an appellant must prove by a preponderance of the
evidence that trial counsel’s performance fell below an objective standard of
2
D.G.’s mother initially testified that her husband received a death threat, and the trial
court sustained a hearsay objection but did not instruct the jury to disregard the statement. The
trial court instructed the jury to disregard the later statement from D.G.’s mother that her
husband told her “I just received a death threat.”
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reasonableness under prevailing professional norms. Id. In making this showing, an
appellant must overcome a strong presumption that trial counsel’s actions fell
within the wide range of reasonable and professional assistance. See id.; Garza v.
State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). “Before granting relief on a
claim that defense counsel failed to do something, we ordinarily require that
counsel be afforded the opportunity to outline the reasons for the omission.”
Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). In determining
whether counsel was ineffective, we consider the totality of the circumstances.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Id.If trial counsel’s reasons for his conduct do not appear in the record and
there is at least the possibility that the conduct could have been grounded in
legitimate trial strategy, we will typically defer to counsel’s decisions and deny
relief on an ineffective assistance claim. Garza, 213 S.W.3d at 348. “It is not
sufficient that appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence.” Lopez,
343 S.W.3d at 142-43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.
App. 2007)). Absent a record sufficient to demonstrate that trial counsel’s conduct
was not the product of a strategic or tactical decision, we should presume that trial
counsel’s performance was constitutionally adequate “unless the challenged
conduct was so outrageous that no competent attorney would have engaged in it.”
State v. Morales, 253 S.W.3d 686, 696-97 (Tex. Crim. App. 2008).
To satisfy the second prong, an appellant must show that there is a
reasonable probability—or a probability sufficient to undermine confidence in the
outcome—that the result of the proceeding would have been different but for trial
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counsel’s unprofessional errors. Lopez, 343 S.W.3d at 142.
I. Failure to Suppress Not Prejudicial
Appellant contends in his first issue that his trial counsel did not “adequately
pursue the suppression of” a shotgun seized from appellant’s home because
counsel did not file a pretrial motion to suppress or seek a pretrial hearing and
present evidence that appellant’s mother did not voluntarily consent to allow
officers to search the home. A trial counsel’s failure to file a motion to suppress is
not per se ineffective assistance of counsel. Wert v. State, 383 S.W.3d 747, 753
(Tex. App.—Houston [14th Dist.] 2012, no pet.). To prove ineffective assistance of
counsel for failing to move to suppress evidence, appellant is required to show not
only that the motion to suppress would have been granted but also that the
remaining evidence would have been insufficient to support his conviction. See
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam) (to
satisfy Strickland, appellant is obliged to prove that motion to suppress would have
been granted); Wert, 383 S.W.3d at 753.
Here, an officer testified at trial that appellant’s mother consented to the
search. At that point, defense counsel examined the officer on voir dire outside the
presence of the jury, and the officer admitted that he did not have a search warrant
and appellant’s mother did not sign a consent to search form. Defense counsel
orally moved to suppress the shotgun seized from appellant’s home, which the trial
court denied. Later during the defense case-in-chief, appellant’s mother testified
that she initially refused to allow officers to search her home and only consented to
turn over the shotgun after an officer threatened to arrest her and she was
handcuffed and placed into a patrol car.
Presuming without deciding that a pretrial motion to suppress would have
been granted after a pretrial hearing in which appellant presented this testimony
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from his mother, we are also required to determine whether the other evidence
presented during trial was sufficient to support appellant’s conviction. The State
was required to prove that appellant intentionally or knowingly threatened D.G.
with imminent bodily injury while using or exhibiting a deadly weapon. Tex. Penal
Code §§ 22.01(a)(2), 22.02(a)(2). Aiming a deadly weapon at someone is sufficient
evidence of a threat to support an aggravated assault conviction. Ward v. State, 113
S.W.3d 518, 521 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); see also
Bedard v. State, No. 14-18-00345-CR, 2019 WL 5444300, at *4 (Tex. App.—
Houston [14th Dist.] Oct. 24, 2019, no pet.) (mem. op., not designated for
publication). Eyewitness testimony regarding the use of a firearm is sufficient to
support a finding of use or exhibition of a deadly weapon. Gomez v. State, 685
S.W.2d 333, 336 (Tex. Crim. App. 1985); Carter v. State, 946 S.W.2d 507, 511
(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). And corroboration of the
complainant’s description of the weapon is not required to support a finding of use
or exhibition of a deadly weapon. Gomez, 685 S.W.2d at 336.
D.G. testified that he was walking home when appellant aimed a shotgun at
him and followed him with the gun site. D.G.’s stepfather testified that D.G. ran
into his front door screaming and was panicked and “in fear.” Moreover,
appellant’s mother testified during the defense’s case-in-chief that on the day of
the purported offense, she and appellant were going to the shooting range and
appellant was carrying “the shotgun with the rifle” to put in the trunk of their car
when two younger children walked by. That testimony is consistent with D.G.’s
testimony that he was walking with a friend when appellant pointed a shotgun at
him.3 Another witness testified for the State that a few months after the alleged
offense, appellant came into her place of business and told her, “I already pulled a
3
Appellant’s mother also testified that she told her son to be careful because there were
kids nearby and appellant put the firearms directly into the trunk.
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gun on my neighbors, and if you call the police, I will shoot everyone in here.”
Appellant has not shown that this evidence was insufficient to support his
conviction. See Guevara v. State, No. 14-16-00701-CR, 2018 WL 771218, at *10–
11 (Tex. App.—Houston [14th Dist.] Feb. 8, 2018, pet. ref’d) (mem. op., not
designated for publication) (holding appellant seeking to establish ineffective
assistance for failure to file motion to suppress did not meet burden to show that
remaining evidence was insufficient to support convictions).
Appellant has not shown on this record that the result of the proceeding
would have been different but for trial counsel’s unprofessional errors. We
overrule appellant’s first issue.
II. Failure to Request Notice of State’s Intention to Introduce
Extraneous Offenses or Bad Acts Not Prejudicial
In his second issue, appellant contends that he received ineffective assistance
during the punishment phase of trial because his attorney failed to request notice of
extraneous crimes or bad acts that the State intended to introduce at trial.
Specifically, appellant asserts that if his attorney had requested notice, he could
have asked the trial court to exclude evidence regarding a purported death threat
from appellant against D.G.’s stepfather on the basis that this incident was not
included in the notice.4
Evidence of extraneous offenses or bad acts is admissible during the
punishment phase of trial. Tex. Code Crim. Proc. art. 37.07 § 3(a). On timely
request from a defendant, the State is required to provide notice that it intends to
offer this type of evidence. Id. art. 37.07 § 3(g). The purpose of the notice
requirement is to give the defendant adequate time to prepare for trial and avoid
4
As mentioned, D.G.’s mother also testified that appellant came to their house, asked
them to drop the aggravated assault charge, and then became hostile and did not immediately
leave when asked. Appellant does not contend this incident was omitted from the notice.
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trial by ambush. Loredo v. State, 157 S.W.3d 26, 29 (Tex. App.—Waco 2004, pet.
ref’d). Accordingly, the failure to request such notice can result in trial counsel
being ambushed with extraneous bad acts introduced by the State during the
punishment phase. Id. One sister court has held such a failure to be “unreasonable
and not justifiable by sound trial strategy.” See id. Another sister court has held to
the contrary that the failure to request notice, standing alone, generally is not
egregious enough to constitute ineffective assistance of counsel. See Rodriguez v.
State, 981 S.W.2d 357, 359 (Tex. App.—San Antonio 1998, no pet.).
Yet another has noted that “[i]n general, trial counsel’s failure to file pre-
trial motions, such as a request for notice of intent to introduce extraneous offense
evidence, does not result in ineffective assistance of counsel,” but in that case, the
court declined to decide whether trial counsel’s failure to request notice under
article 37.07 constituted deficient performance. See Martinez v. State, 449 S.W.3d
193, 208 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). We likewise do not
need to reach this issue because appellant has not demonstrated on this record that
if he had received timely notice, the jury’s assessment of punishment would have
been less severe in the absence of counsel’s deficient performance. See id. (citing
Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d)).
During the punishment phase, in addition to the testimony from D.G.’s
mother, the State presented testimony from three other witnesses. A teacher from
appellant’s high school testified that appellant intentionally pushed him and fell on
top of him, which resulted in the teacher having a concussion, two seizures, and a
torn rotator cuff. At the time of trial six years later, the teacher was still on seizure
medication from the incident. A gas station attendant testified that appellant
displayed a machete and threatened to kill the attendant and his family after the
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attendant refused to sell alcohol to appellant at a time when he was underage. D.G.
also testified that he had been “pretty scared” and under a lot of stress since the
time of the alleged offense. He did not feel safe to go outside by himself.
Appellant also stipulated at trial that he had received juvenile court
adjudications of felony offenses for aggravated assault using a deadly weapon and
assault resulting in bodily injury against a public servant, as well as misdemeanor
offenses for criminal trespass and evading arrest. Appellant further stipulated that
he had been convicted of the following misdemeanors that occurred after the
alleged offense at hand: driving while intoxicated, theft, and criminal trespass. The
jury had also heard during the guilt-innocence phase of trial the testimony
mentioned above that appellant allegedly threatened a witness by telling her he had
pulled a gun on his neighbors and would “shoot everyone in here . . . if you call the
police.”
During closing arguments, the prosecutor asked the jury to consider “at least
five year’s prison time” based on the following factors: the effect of the alleged
offense on D.G., appellant’s prior juvenile adjudications and misdemeanor
convictions, the threats that appellant had previously made against several people,
and prior assaults. The prosecutor did not mention the purported death threat
against D.G.’s stepfather.
Considering the totality of evidence presented at trial, appellant has not
established on this record that, had his trial counsel requested notice from the State
of its intent to offer extraneous offenses or bad acts evidence, a reasonable
probability exists that the jury would have assessed a less severe sentence. See id.
at 208-09. We overrule appellant’s second issue.
III. Record Undeveloped as to Failure to Investigate Mental Health
History and Present Mitigating Evidence
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Appellant contends in his third issue that he received ineffective assistance
because his attorney purportedly failed to investigate and present mitigating
evidence of his history of mental illness. Appellant contends that trial counsel was
aware of appellant’s mental illness and treatment history and testimony from
appellant’s mother at his bond hearing should have generated further investigation.
Failure to conduct an adequate investigation may constitute ineffective
assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 521–23 (2003). As the
Supreme Court said in Strickland, “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 691. A claim for ineffective assistance based on trial
counsel’s failure to investigate generally fails absent a showing of what the
investigation would have revealed that reasonably could have changed the result of
the case. Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App.
2007)).
Appellant argues that his mother’s testimony at his bond hearing shows his
trial counsel “knew the issue existed and merited further investigation.” His mother
testified at the bond hearing that appellant had certain mental health issues,
including “[a]ggressive behaviors[.] Slightly maybe bipolar. ADHD for sure.”
According to his mother, appellant had been under the care of mental health
professionals and was taking medication off and on for years. Appellant contends
this information should have prompted his trial counsel to conduct further
investigations. Presuming that is true, however, the record is silent as to what
investigative steps counsel took and what conclusions he may have subsequently
drawn. See, e.g., Brown v. State, 129 S.W.3d 762, 767 (Tex. App.—Houston [1st
Dist.] 2004, no pet.) (“We will not assume that counsel did not investigate a
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defense when the record is merely silent as to the depth of counsel’s
investigation.”) (citing Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986)). When the record is silent as to counsel’s trial strategy, we may not
speculate about why counsel acted as he did. See Rylander v. State, 101 S.W.3d
107, 110–11 (Tex. Crim. App. 2003).
Appellant also contends that his trial counsel should have offered additional
evidence of his mental health history at his punishment hearing and that failure to
do so was ineffective assistance of counsel. In particular, appellant argues that his
counsel should have introduced more information regarding appellant’s diagnoses,
what medications he took, and the seriousness of his mental health struggles.
Appellant’s mother testified at the punishment hearing that her son was “off
balance from time to time,” and “had ADHD at one point, borderline bipolar.” She
also said he had received medical attention and was on medication. The State also
introduced evidence showing that appellant was ordered to undergo a
psychological evaluation in a prior juvenile proceeding.
Although appellant complains that apart from his mother’s testimony, his
counsel should have introduced more information about his mental health history,
appellant does not identify any specific mental health evidence related to his
diagnoses and medication that the jury could have considered to mitigate his
punishment. To meet his burden of showing his counsel’s performance was
deficient, appellant was required to point to evidence in the record that
affirmatively demonstrates “the meritorious nature of the claim.” See Menefield v.
State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). The evidence in the record
regarding appellant’s mental health history, moreover, is not unambiguously
helpful for the defense: his mother recognized that appellant suffered from certain
mental illnesses and sometimes took medication, but there is no evidence regarding
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how appellant’s mental health history could have been considered as a mitigating
factor—for example, this evidence does not show how his mental health history,
without more, could, in appellant’s words, “explain the cause of [his] behavior and
the steps that could be taken to prevent further outbursts.”5
The record before us does not contain a statement by trial counsel explaining
the reasons for the actions he took, including the decision not to introduce or rely
upon additional evidence regarding appellant’s mental health history at the
punishment hearing. Since the record is silent as to counsel’s strategy, we may not
find deficient performance unless the conduct appellant now challenges 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).
Because the record is silent as to trial counsel’s investigative efforts and
choices regarding what information from appellant’s record to introduce at trial,
we cannot conclude that trial counsel furnished ineffective assistance. On this
record, appellant has not shown that trial counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. We
overrule appellant’s third issue.
5
Appellant presented an affidavit in support of his motion for new trial in which he
attested that he had been hospitalized for mental health disorders and diagnosed with bipolar
disorder, anxiety, ADHD, and insomnia and was taking various medications for these conditions.
He also attested that he raised this issue with his trial attorney but “it was not presented to the
judge.” There is no evidence on this record that the trial court was presented with appellant’s
motion and the affidavit, as discussed below, but even if it were, we cannot say on this record
that this information, without more, provided the trial court with sufficient facts from which it
could reasonably conclude that, but for counsel’s alleged failures, a reasonable likelihood exists
that the outcome of his trial would have been different because the affidavit does not reveal what
investigative steps counsel took, what conclusions he may have subsequently drawn, how severe
appellant’s mental health disorders were, or whether appellant’s mental health history would be a
mitigating factor in his punishment.
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IV. Motion for New Trial Not Presented to Trial Court
In his fourth and final issue, appellant asserts that the trial court abused its
discretion in failing to grant appellant’s motion for new trial and allowing the
motion to be overruled by operation of law. Appellant asks this court to reverse
and remand the case for a new trial or for a new punishment hearing. Alternatively,
appellant asks us to abate the appeal and remand the case for a hearing on the
motion for new trial. The State contends that the trial court did not abuse its
discretion in allowing the motion for new trial to be overruled by operation of law
because the motion was never presented to the trial court.
A defendant must present a motion for new trial to the trial court within ten
days of filing it. Tex. R. App. P. 21.6. “The purpose of the presentment rule is to
put the trial court on actual notice that a defendant desires the trial court to take
some action on the motion for new trial such as a ruling or a hearing on it.” Stokes
v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). “Presentment” must be
apparent from the record. Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App.
2009). Presentment can be shown by such proof as the judge’s signature or
notation on the motion or proposed order, or a docket entry showing presentment
or setting a hearing date. Id.Nothing in this record shows appellant ever presented his motion to the trial
court. See id. The only relevant docket entry shows the motion was filed, but it
does not show presentment. See Longoria v. State, 154 S.W.3d 747, 762 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d) (“Although the final entry on the
court’s docket sheet states ‘Mo. for New Trial filed,’ this notation is not sufficient
to show presentment.”). Without any showing that the trial court actually saw
appellant’s motion for new trial, a trial court cannot be faulted for allowing a
motion for new trial to be overruled by operation of law. See Gardner, 306 S.W.3d
13at 305.
Because appellant did not show that he timely presented his motion for new
trial to the trial court, the trial court did not abuse its discretion in allowing the
motion to be denied by operation of law or failing to conduct a hearing on the
motion. See id. at 305–06; see also Longoria, 154 S.W.3d at 762–63 (“A trial court
cannot abuse its discretion by denying a motion for new trial by operation of law
when the motion was not timely presented.”). We overrule appellant’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
/s/ Frances Bourliot
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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