Jerome Goody v. State , 2014 Tex. App. LEXIS 2688 ( 2014 )

Opinion issued March 11, 2014
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-12-01138-CR
01-12-01139-CR
01-12-01140-CR
01-12-01141-CR
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JEROME GOODY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause Nos. 1339911, 1339912, 1339913, and 1339914
OPINION ON REHEARING
Following the issuance of our original opinion, Jerome Goody moved for
rehearing en banc. The panel withdraws our original opinion, vacates our prior
judgment, and issues this opinion on rehearing and a new judgment in their stead.
Appellant Jerome Goody pleaded guilty to an aggravated robbery charge and
three aggravated assault charges, without an agreed punishment recommendation
from the State. TEX. PENAL CODE ANN. §§ 22.02, 29.03 (West 2011). He also
pleaded true to an enhancement paragraph alleging that he had been adjudged to
have engaged in delinquent conduct. The trial court ordered a pre-sentence
investigation (PSI) and, after receiving the PSI report, held a punishment hearing.
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9 (West Supp. 2013). The court
assessed punishment at life imprisonment for the aggravated robbery charge, sixty
years’ imprisonment for aggravated assault against a public servant, and ten years’
imprisonment for each of the two counts of aggravated assault with a deadly
weapon. Goody appeals from the trial court’s denial of his motion for new trial,
contending that he received ineffective assistance of counsel because (1) his
counsel had a conflict of interest which compromised his representation, (2) his
counsel was incompetent as a matter of law, and (3) his counsel failed to
adequately investigate for mitigation evidence. Finding no error, we affirm.
Background
In September 2010, Jerome Goody, Charles Davis, and Jay Scott Garrison
pulled into a bank parking lot in north Houston. Goody and Davis entered the
bank wearing masks and displaying handguns. Mitchell Bettin, a sheriff’s deputy
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who was present at the scene, drew his handgun. Goody and Davis fired at Deputy
Bettin and struck him twice in the left arm. As the robbers fled, Deputy Bettin
returned fire, firing five or six shots at them through the bank’s glass door.
Some hours later, Goody presented to LBJ Hospital with a gunshot wound to
his leg. Following an investigation, he was indicted for aggravated robbery and
aggravated assault. He also was indicted on two aggravated assault charges arising
out of a June 2010 altercation with a man and a woman, Zachary Thrasher and
Carol Boston, during which Goody fired a handgun at Thrasher’s feet and his car.
Following guilty pleas by his co-defendants, Goody pleaded guilty to all
charges without an agreement with the State as to sentencing. After the trial court
assessed punishment, Goody moved for a new trial, contending that he received
ineffective assistance of counsel. He appeals from the denial of his motion.
Discussion
I. Standard of Review
We review a trial court’s ruling on a motion for new trial under an abuse of
discretion standard, reversing “only if the trial judge’s opinion was clearly
erroneous and arbitrary.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.
2012). We view the evidence in the light most favorable to the trial court’s ruling,
must not substitute our judgment for that of the trial court, and must uphold the
ruling if it was within the zone of reasonable disagreement. Id.; Wead v. State, 129
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S.W.3d 126, 129 (Tex. Crim. App. 2004) (under abuse of discretion standard,
appellate court must uphold trial court’s ruling if within zone of reasonable
disagreement). If there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous. Riley, 378 S.W.3d at 456–58.
Thus, a trial court abuses its discretion in denying a motion for new trial only when
no reasonable view of the record could support its ruling. Id.; Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007).
II. Ineffective Assistance of Counsel
We evaluate claims of ineffective assistance of counsel under the analytical
framework set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). To prevail under Strickland, an appellant must show both that
(1) counsel’s performance fell below an objective standard of reasonableness and
(2) but for counsel’s unprofessional error, there is a reasonable probability that the
result of the proceeding would have been different. Id.; Vasquez v. State, 830
S.W.2d 948, 949 (Tex. Crim. App. 1992). Strickland defines reasonable
probability as a “probability sufficient to undermine confidence in the outcome.”
466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look
to the totality of the representation to determine the effectiveness of counsel,
indulging a strong presumption that the attorney’s performance falls within the
wide range of reasonable professional assistance or trial strategy. Thompson v.
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State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Furthermore, a claim of
ineffective assistance must be firmly supported in the record. Id.
A. Conflict of Interest
Goody contends that his trial counsel had a conflict of interest that affected
the adequacy of his counsel. The Sixth Amendment guarantees the right to
reasonably effective assistance of counsel, which includes the right to “conflict-
free” representation. See Strickland, 466 U.S.668, at 692, 104 S. Ct. at 2064, 2067;
Cuyler v. Sullivan, 446 U.S. 335, 348–50, 100 S. Ct. 1708, 1718–19 (1980); see
also TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.06(b), reprinted in TEX.
GOV’T CODE ANN., tit. 2, subtit. G, app. A (TEX. STATE BAR R. art. X, § 9)
(providing that attorney shall not represent person if representation “reasonably
appears to be or become adversely limited by the lawyer’s . . . responsibilities to
another client or to a third person”). In the case of a conflict of interest, trial
counsel renders ineffective assistance if the defendant can demonstrate (1) that trial
counsel was burdened by an actual conflict of interest and (2) that the conflict
actually affected the adequacy of counsel’s representation. Cuyler, 446 U.S. at
349–50, 100 S. Ct. at 1719. If a defendant establishes both of these requirements,
he need not demonstrate prejudice—the second prong of ineffective assistance
claims under the usual Strickland standard—to obtain relief. Id.; see also Banda v.
State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) (“If appellant demonstrates [the
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Cuyler requirements], then the second prong of the Strickland test will be met
because prejudice is presumed.”).
An “actual conflict of interest” exists if “counsel is required to make a
choice between advancing his client’s interests in a fair trial [and] advancing other
interests . . . to the detriment of his client’s interest.” Acosta v. State, 233 S.W.3d
349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947 S.W.2d 559, 564
(Tex. Crim. App. 1997)); McKinny v. State, 76 S.W.3d 463, 477 (Tex. App.—
Houston [1st Dist.] 2002, no pet.) (citing Ex parte Morrow, 952 S.W.2d 530, 538
(Tex. Crim. App. 1997)). A potential conflict of interest, without more, is
insufficient to reverse a conviction. See Cuyler, 446 U.S. at 350, 100 S. Ct. at
1719; Ex parte Meltzer, 180 S.W.3d 252, 256 (Tex. App.—Fort Worth 2005, no
pet.) (“The showing of a potential conflict of interest does not constitute an actual
conflict of interest.”). Absent a showing that a potential conflict of interest became
an actual conflict, we will not “speculate about a strategy an attorney might have
pursued, but for the existence of a potential conflict of interest.” Routier v. State,
112 S.W.3d 554, 585 (Tex. Crim. App. 2003).
During the motion for new trial hearing, Goody adduced evidence that his
attorney, Ronald Ray, had been indicted for barratry. Goody contends that the
barratry offense presents a conflict of interest that compromised Ray’s
representation of Goody in this case. A lawyer who employs a non-lawyer to
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solicit business for him commits barratry. See TEX. PENAL CODE ANN. § 38.12
(West 2011). Ray employed Jeremiah Binder, purportedly a minister, to solicit
business for him.
Goody cites the Second Circuit’s decision in United States v. Cancilla, 725
F.2d 867 (2d Cir. 1984), for the proposition that an attorney who fears criminal
liability may avoid mounting a vigorous defense because, by doing so, he may call
attention to his own crimes. Goody points to the court’s observation that “[s]uch a
person cannot be wholly free from fear of what might happen if a vigorous defense
should lead the prosecutor or the trial judge to inquire into his background . . . .”
Cancilla, 725 F.2d at 869–70 (quoting Solina v. United States, 709 F.2d 160, 164
(2d Cir. 1983)).
In Cancilla, Peter Cancilla was involved in an insurance fraud scheme in
which he submitted false insurance claims relating to damaged cars. Id. at 868.
Cancilla appealed his conviction on the basis that his counsel’s representation of
the body shop that repaired the cars constituted a conflict of interest. Id. While the
appeal was pending, the government discovered information suggesting that
Cancilla’s trial counsel had himself committed such a fraud with one of Cancilla’s
co-conspirators. Id. The court reasoned that “with the similarity of counsel’s
criminal activities to Cancilla’s schemes and the link between them, it must have
occurred to counsel that a vigorous defense might uncover evidence or prompt
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testimony revealing his own crimes . . . .” Id. at 870. The court’s holding that an
attorney’s own crimes might compromise his representation of his client was
predicated on the similarity between the attorney’s crimes and the defendant’s
crimes and they related to the same facts. See id.
In contrast to counsel’s misconduct in Cancilla, Ray’s criminal misconduct
does not share a common factual basis with Goody’s crimes such that a vigorous
defense would expose Ray’s misdeeds. Goody did not demonstrate that Ray’s
conduct actually affected the adequacy of Ray’s representation. See Cuyler, 446
U.S. at 349–50, 100 S. Ct. at 1719. In the absence of specific allegations or
evidence of an actual adverse effect on Ray’s representation of Goody, the trial
court was within its discretion to deny the motion for new trial; we will not
speculate as to how a fear of prosecution might have affected Ray’s performance.
See Routier, 112 S.W.3d at 585.
Goody further responds that, because Ray was under indictment for barratry
while he represented Goody, his license to practice law was in jeopardy, making
him ineffective as a matter of law. In Cantu v. State, the Court of Criminal
Appeals held that a layman acting as counsel is ineffective as a matter of law. 930
S.W.2d 594, 602 (Tex. Crim. App. 1996). In that case, however, the Court
prescribed a different rule for suspended or disbarred counsel, holding that “[a]
suspended or disbarred attorney is incompetent as a matter of law if the reasons for
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the discipline imposed reflect so poorly upon the attorney’s competence that it may
reasonably be inferred that the attorney was incompetent to represent the defendant
in the proceeding in question.” Id. at 602. The court listed seven relevant factors
to consider in determining whether a suspended or disbarred attorney is
incompetent. Id. at 602-03.
Although Ray’s barratry charge was pending while he represented Goody,
the record does not indicate that he lacked a valid license to practice law, or that he
had been suspended or disbarred. Cantu’s per se rule applies only to attorneys who
are not properly licensed at the time of representation. As a result, we do not reach
the Cantu factors. Because Goody has not demonstrated that the pending criminal
charge actually conflicted with Ray’s representation of him or that it affected his
assistance as counsel, we hold that the trial court did not abuse its discretion in
concluding that Goody failed to demonstrate that Ray was incompetent as a matter
of law.
B. Failure to Investigate
Second, Goody contends that his counsel’s investigation of mitigating
evidence was inadequate, particularly evidence relating to Goody’s developmental
disability and history of mental illness.
In considering whether trial counsel conducted an adequate investigation for
potential mitigating evidence, we focus on whether the investigation supporting
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counsel’s decision not to introduce mitigating evidence of Goody’s background
was reasonable. See Freeman v. State, 167 S.W.3d 114, 117 (Tex. App.—Waco
2005, no pet.) (quoting Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 2535
(2003)). While “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence,” “counsel can . . . make a reasonable
decision to forego presentation of mitigating evidence [only] after evaluating
available testimony and determining that it would not be helpful.” Wiggins, 539
U.S. at 533, 123 S. Ct. at 2537; Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d). Counsel’s representation is ineffective,
then, if counsel failed to conduct an adequate pretrial investigation. Wiggins, 539
U.S. at 521, 123 S. Ct. at 2535–36; Freeman, 167 S.W.3d at 117.
If counsel’s investigation was deficient, then a defendant must show that a
reasonable probability exists that the fact-finder’s assessment of punishment would
have been less severe in the absence of defense counsel’s deficient performance.
Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d). “The likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 792
(2011). In reviewing whether the defendant satisfied this showing, we accord
“almost total deference to a trial court’s findings of historical fact as well as mixed
questions of law and fact that turn on an evaluation of credibility and demeanor.”
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Riley, 378 S.W.3d at 458–59. Further, when the trial judge presiding over a
motion for new trial also presided over the trial itself, we presume that the judge
knew how evidence admitted at the motion for new trial would have affected his
ruling on punishment. See Smith v. State, 286 S.W.3d 333, 344–45 (Tex. Crim.
App. 2009).
Goody contends that his counsel was ineffective for failing to discover
mitigation evidence which would have shown that he is developmentally disabled
and had cognitive deficiencies which would have reduced his moral culpability at
sentencing. He suggests that if his counsel had obtained his mental health records
and presented them at his punishment hearing, he would have received a reduced
sentence.
We need not reach the question of whether Goody’s trial counsel erred
because he has not established prejudice. The same judge who presided over
Goody’s punishment hearing heard his motion for new trial. All of the documents
which Goody’s trial counsel purportedly should have discovered were included in
the record at the motion for new trial. Goody’s appellate counsel discussed the
exhibits in considerable detail at the hearing on the motion. We presume from the
trial court’s denial of Goody’s motion that the documents, even if
discovered, would not have affected its decision on sentencing. See Smith, 286
S.W.3d at 344–45. The trial court rejected the credibility of some of the new trial
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evidence as conflicting with other evidence heard at the punishment hearing; he
concluded that none of it outweighed Goody’s escalating violent criminal conduct
or his gang affiliation and leadership. In short, the trial court rejected the idea that
the punishment that it assessed would have been mitigated by this evidence. We
hold that Goody has failed to show that he was prejudiced by his attorney’s failure
to produce the documents at his punishment hearing.
Goody contends alternatively that the mitigation evidence admitted at the
motion for new trial hearing might have influenced plea negotiations. However, to
defeat 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. Thompson v. State, 9
S.W.3d 808, 813–14 (Tex. Crim. App. 1999); Rivera v. State, 123 S.W.3d 21, 29
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The record in the present case
provides scant information on the plea-bargaining process, counsel’s strategy at
that stage in the proceedings, or counsel’s awareness of Goody’s mental health
history. Without an adequate showing, we decline to hold that Goody’s counsel
was ineffective in connection with negotiating Goody’s guilty plea.
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Conclusion
We hold that Goody has not carried his burden to prove ineffective
assistance of counsel. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Publish. TEX. R. APP. P. 47.4.
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