Erik White v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00320-CR
NO. 02-14-00321-CR
NO. 02-14-00322-CR
NO. 02-14-00323-CR
ERIK WHITE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1316391D, 1330277D, 1330414D, 1331423D
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MEMORANDUM OPINION 1
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Appellant Erik White appeals his convictions for two counts of burglary and
two counts of aggravated robbery. In two points, he contends that his trial
counsel was ineffective for failing to request a severance of his trial from his
codefendant’s trial and for failing to further inquire about the trial judge’s
1
See Tex. R. App. P. 47.4.
relationship with a complaining witness after the judge disclosed the relationship.
We affirm.
Background Facts
One afternoon in June 2013, appellant entered a retired woman’s home in
Fort Worth and pointed a gun at her. 2 After putting his gun away, he took a
laptop and camera from the kitchen area of the home. Appellant, who appeared
to be nervous, asked the woman for jewelry, and she went with him to a bedroom
that contained some costume jewelry. She asked appellant to not hurt her, and
he said that he would not. Appellant walked out of the house with the laptop and
camera, and the woman locked the door behind him.
Two days later, appellant and two other men, who were all wearing gloves
and masks, went to the house of another elderly woman. The men confronted
the woman in her garage, knocked her down, dragged her into her house, taped
her legs together, and told her to “shut up.” After the police received a dispatch
and arrived at the woman’s residence, her neighbor said that he had seen a male
enter her home. An officer approached the garage of the house and heard glass
breaking; he informed other officers of a possible burglary in progress. Another
neighbor alerted the officer that she had seen two men running through a field
2
James Burns, one of appellant’s acquaintances, drove him to and from
the home and monitored the woman’s husband, who was working in the front
yard.
2
near the house. After a lengthy chase, the officer apprehended and detained
appellant.
Another officer entered the house and found the woman lying face down
on the floor; she was upset and had blood in her hair and duct tape wrapped
around her legs. The police discovered that all of the bedrooms in the house had
been rummaged through; the burglars had pulled items out of shelves and
closets, had moved electronic devices, had opened dresser drawers, and had
scattered “little boxes of stuff” in the house.
Stemming from these incidents, in separate cases, appellant was indicted
for two counts of burglary and two counts of aggravated robbery. With respect to
all of these charges, appellant retained counsel, waived constitutional and
statutory rights, judicially confessed, and entered open guilty pleas. The trial
court ordered the preparation of a presentence investigation report and set a
date for a punishment hearing. In one punishment hearing, the trial court
considered appellant’s punishment along with the punishment of a codefendant,
Dvonte Chadwick.
Chadwick testified that he had been involved in the second incident but
denied that he had ever touched the victim. He said that the victim had received
her injury when her head hit the corner of a wall. Appellant testified that he had
“learned from the wrong[s] that [he had] done,” but he said that he did not
remember any details of the second offense, including who had dragged the
victim into her house, because he had been under the influence of drugs that
3
day. Regarding the second offense, he testified that he was not the “main party”
committing the crime. Appellant testified that he had used a BB gun during the
first incident (while wanting the victim to believe that the gun was real) and that
he had stolen only a laptop and a camera that day. He also acknowledged that
he had been involved in numerous other burglaries and thefts. Appellant asked
the trial court to place him on probation.
After hearing the parties’ evidence (including testimony from appellant’s
mother and uncle) and arguments, the trial court found appellant guilty of all four
offenses and sentenced him to twenty years’ confinement on the burglary
charges and confinement for life on the aggravated robbery charges, with the
sentences running concurrently. 3 Appellant brought these appeals.
Alleged Ineffective Assistance
In his two points, appellant contends that his trial counsel provided
ineffective assistance. The Sixth Amendment guarantees the right to reasonably
effective assistance of counsel for defendants in criminal prosecutions. See U.S.
Const. amend. VI; Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim. App. 2014).
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d
3
The court convicted Chadwick of aggravated robbery and sentenced him
to thirty years’ confinement.
4
289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.
Crim. App. 1999). An ineffective-assistance claim must be “firmly founded in the
record,” and “the record must affirmatively demonstrate” the meritorious nature of
the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance 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; Nava, 415 S.W.3d at 307. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel
“should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not
5
given that opportunity, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
In his first point, appellant contends that his trial counsel was ineffective
because he failed to request a severance of appellant’s punishment trial from
Chadwick’s punishment trial. Before the trial court began receiving testimony at
the punishment hearing, Chadwick’s attorney and the trial court had the following
colloquy:
[CHADWICK’S COUNSEL]: [A]s many years as I’ve been
doing this, I have not proceeded in this manner. Why are we having
this kind of a joint hearing?
THE COURT: It’s my understanding that because we have
. . . an overlap in testimony and because the Court is hearing this,
the Court will be considering the testimony that is [duplicative] as to
each Defendant, as to that person and their involvement, and then
will be considering separately the testimony that has to do with either
one Defendant or the other separately, because we have witnesses
who are common to both cases, in the interest of judicial efficiency.
[CHADWICK’S COUNSEL]: Okay. . . .
....
THE COURT: Is that satisfactory to the Defense?
[CHADWICK’S COUNSEL]: That is.
Similarly, later in the hearing, when the State offered an exhibit relating to DNA
evidence for admission, 4 the following exchange occurred:
4
The State later withdrew the offer.
6
[CHADWICK’S COUNSEL]: [T]hat’s kind of why I didn’t want
a joint hearing in here, and I’ll make that quite clear later on. There’s
some quite different things about what my client did or didn’t do and
what [appellant] did or didn’t do. I’m not here to comment on what
he did or didn’t do, but, anyway, thank you.
THE COURT: And nobody’s forcing anyone to participate in
the joint hearing. I didn’t hear any objection, and that’s the way that
we have proceeded. Do you have an objection?
[CHADWICK’S COUNSEL]: No, I want to continue on, and I
think we can proceed and handle this in a fair fashion.
Appellant’s counsel never objected or expressed disagreement with the joint
hearing.
On appeal, appellant recognizes that a trial court has discretion to conduct
a joint trial of codefendants when their alleged crimes arise out of the same
transaction. See Tex. Code Crim. Proc. Ann. art. 36.09 (West 2007).
Nonetheless, he argues that in this case, it was “incumbent upon trial counsel to
request . . . a severance prior to trial in order to protect [appellant’s] rights.” He
asserts that the “facts pertaining to his participation in the offenses . . . differ[ed]
from the participation of his [codefendant] and, therefore, [a]ppellant was
prejudiced by the trial [c]ourt hearing evidence regarding the [codefendant’s]
participation and subsequently deciding [a]ppellant’s punishment.” 5
5
This contention appears in the argument-summary portion of appellant’s
brief. In the argument itself, appellant asserts that his participation in the
offenses differed from others’ participation, and he highlights his own testimony
about how Burns was the “main party” in the crimes. We note, however, that
appellant’s punishment was considered jointly with Chadwick’s punishment, not
Burns’s punishment, which had been already determined. Appellant’s argument
does not establish that Chadwick had a significantly greater or different role in
7
Appellant’s trial counsel’s reason for not objecting to the joint hearing does
not appear in the record. 6 The record does not show that Chadwick had any
prior admissible convictions 7 or that Chadwick’s strategy was antagonistic to
appellant. In fact, both appellant and Chadwick portrayed themselves as
followers of another perpetrator, and Chadwick confirmed appellant’s testimony
that appellant was under the influence of drugs while committing the offense.
Thus, we conclude from this record that is silent concerning counsel’s trial
strategy that we cannot infer ineffective assistance; counsel’s failure to object or
request a severance was not so outrageous that no competent attorney would
have engaged in it. See Nava, 415 S.W.3d at 308 (“It is a rare case in which the
trial record will by itself be sufficient to demonstrate an ineffective-assistance
claim.”); Menefield, 363 S.W.3d at 593; Woods v. State, 998 S.W.2d 633, 636
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding that when the record
was silent concerning trial counsel’s reasons for not asking for a severance, the
appellant could not rebut “the presumption that [counsel’s] failure to request a
severance was a decision made in the exercise of reasonable professional
judgment”); see also Cruz v. State, No. 01-11-00150-CR, 2012 WL 1753007, at
the second burglary (the only one of these two incidents that Chadwick
participated in) than appellant, nor does the argument particularly demonstrate
how joining Chadwick’s trial with his own prejudiced him.
6
Appellant filed a motion for new trial in each case, but in the motion, he
did not contend that his trial counsel had provided ineffective assistance.
7
Chadwick testified that he did not have any criminal history.
8
*4 (Tex. App.—Houston [1st Dist.] May 17, 2012, no pet.) (mem. op., not
designated for publication) (“Because the record does not offer an explanation for
[failing to seek a severance], we presume that trial counsel made all significant
decisions in the exercise of reasonable professional judgment.”). We hold that
appellant cannot meet his burden to establish ineffective assistance of his trial
counsel for not requesting a severance, and we overrule his first point. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Nava, 415 S.W.3d at 307.
In his second point, appellant contends that his trial counsel was
ineffective for failing to inquire further about the trial judge’s association with a
complaining witness after the judge first disclosed the association. After
appellant had pled guilty to these four offenses, toward the beginning of the
hearing on his punishment, the following exchange occurred:
THE COURT: And as to both attorneys, the Court has also
communicated with all parties, I believe it was yesterday, by e-mail,
or maybe the day before, that the Court had received information
that one of the injured parties who -- in a burglary, who would be
testifying today, was someone who was known to this Court, to the
Judge personally, from church. Not known well or a person with
whom the Court has -- this Judge has socialized, but I do know this
person from church. And both [defendants’ attorneys] are aware of
that fact and have decided to proceed with that fact known and
understood.
[CHADWICK’S COUNSEL]: That is correct.
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: And the Court will not be taking any personal
association or knowledge of a person involved in this case into
account to either increase or decrease the sentence[; the
association] will not have an impact on this Court’s decision.
9
Appellant contends on appeal that “despite the [trial court’s] assurances, it
[was] incumbent upon trial counsel to inquire further into this matter given the
relationship that a complaining [witness’s] testimony can bear on the punishment
assessed.” He argues that at the “very least, counsel should have called the
complainant as a witness to inquire of her relationship” with the trial judge.
Trial counsel has not been given an opportunity to explain his reasoning
for proceeding with the trial without further clarification of the association
between the judge and the complaining witness. We conclude that competent
counsel could have reasonably credited and relied on the trial judge’s
representations that her association with the complaining witness was limited and
that her sentencing decision would not be impacted by the association. Because
we conclude that counsel’s unexplained decision to not inquire further about the
association was not so outrageous that no competent attorney would have made
the same decision, we must conclude that appellant cannot meet his burden to
establish ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104
S. Ct. at 2064; Nava, 415 S.W.3d at 307; Menefield, 363 S.W.3d at 593; see also
Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003) (holding that
an appellant could not succeed on a claim of ineffective assistance of counsel
when the trial record did not disclose counsel’s reasons for not filing a motion to
recuse after a judge made comments that may have demonstrated the judge’s
bias); Diaz v. State, 380 S.W.3d 309, 312 (Tex. App.—Fort Worth 2012, pet.
ref’d) (“A record that is silent as to defense counsel’s trial strategy and provides
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no explanation of counsel’s actions generally will not overcome the strong
presumption of reasonable assistance.”). We overrule appellant’s second point. 8
Conclusion
Having overruled both of appellant’s points, we affirm the trial court’s
judgments.
/s/ Charles Bleil
CHARLES BLEIL
JUSTICE
PANEL: GARDNER and SUDDERTH, JJ.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 30, 2015
8
Concerning both points, because we hold that the record is insufficient to
establish that appellant’s trial counsel provided deficient representation, we need
not examine whether counsel’s representation prejudiced appellant. See Garcia
v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[A]n appellant’s failure to
satisfy one prong of the Strickland test negates a court’s need to consider the
other prong.”), cert. denied, 537 U.S. 1195 (2003).
11