Henry Elliott Batiste v. State ( 2020 )

Opinion issued December 17, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00837-CR
NO. 01-19-00838-CR
———————————
HENRY ELLIOTT BATISTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case Nos. 18CR1642, 18CR1643
MEMORANDUM OPINION
A jury convicted appellant Henry Elliott Batiste of aggravated assault with a
deadly weapon—namely, scissors or a knife—and assault family violence by
impeding breath or circulation.1 The jury also found the allegations in two
enhancement paragraphs “true” and assessed appellant’s punishment at 50 years’
confinement. In his sole issue on appeal, appellant contends he received ineffective
assistance of counsel during the guilt/innocence phase of trial.
Because appellant’s issue is not supported by the appellate record, we affirm.
Background
A grand jury indicted appellant for two offenses committed against the
complainant Charell Graham: (1) aggravated assault with a deadly weapon and
(2) assault family violence by impeding breath or circulation.
Trial proceedings
At the time the assaults occurred, Graham was living in an apartment with her
young children, appellant (whom she was dating), and appellant’s sister, Henryona
Batiste. Graham testified that she and appellant got into an argument after appellant
damaged her car. Graham told appellant she wanted to end their relationship, and
appellant demanded that Graham leave the apartment. Their argument escalated.
Appellant lifted Graham over the edge of the apartment balcony and told her: “You
lucky these kids are on this balcony or I would have killed you.”
1
See TEX. PENAL CODE §§ 22.01, 22.02; see also TEX. FAM. CODE §§ 71.0021(b),
.005.
2
Back inside the apartment, Graham attempted to shower. But appellant
entered the bathroom and pushed Graham’s head under the stream of water from the
showerhead. According to Graham, appellant was “trying to drown [her].” As
Graham dried off from the shower, appellant told her that he wanted to have sexual
intercourse and “pinned [her] down” on a bed and stated, “I ought to rape you.”
Appellant then used his fingers to penetrate Graham two or three times.
When appellant stopped, Graham got up from the bed and moved toward a
wall. Graham testified that appellant then forced her back against the wall and
“choked” her until she “blacked out.” When Graham regained consciousness, she
had fallen to the floor and required the inhaler she uses to treat chronic asthma.
Appellant brought the inhaler to Graham, but, according to Graham, was still acting
aggressively and “[j]ust out of it.”
Graham further testified that appellant then left the room and returned with a
kitchen knife. Appellant approached Graham and pointed the knife toward her
stomach—touching her stomach with the tip of the knife’s blade. Appellant then
began to cry and told Graham to “kill him with [the knife].” Graham refused to
touch the knife.
According to Graham, she did not contact the police because she was afraid
doing so would further escalate the conflict. Instead, she contacted Henryona,
appellant’s sister, who returned to the apartment and spoke privately with Graham
3
about what had happened. Henryona told appellant to leave the apartment.
Appellant refused and became aggressive, striking Graham first on her face with his
open hand and then on her neck and shoulder with a closed fist. Appellant also
began to choke Graham again, but Henryona intervened and pulled appellant away.
Henryona called 911, which “made [appellant] more aggressive.” Appellant
grabbed a pair of scissors from a child’s “coloring box” and jabbed them at Graham.
He brought the scissors near Graham’s face and threatened to kill her.
Also, according to Graham, appellant himself called 911. Graham recalled
that appellant made threats to the 911 operator and stated: “My name is Henry
Batiste. And if you guys don’t come get me, then I’m going to kill [Graham], and
her kids, and myself.”
When the police arrived at the apartment, Graham cooperated with their
investigation and allowed them to photograph her injuries.2 Graham also testified
that on the night before she was scheduled to meet with the prosecutors in advance
of trial, Henryona contacted her by telephone and asked her not to testify.
2
The State introduced the evidence collected from the apartment through the
testimony of T. Robison, a patrol officer with the Texas City Police Department.
Officer Robison testified that he photographed Graham and observed discoloration
on her neck. He also collected a steak knife and a pair of scissors, which he testified
could have been designed for use by a child, from the kitchen sink. His attention
was drawn to those items by Henryona.
4
Appellant’s trial counsel cross-examined Graham about discrepancies
between her trial testimony and statements she made to police immediately after the
assaults—including her statement to the responding officers that appellant
threatened her with scissors before he choked her a second time. She acknowledged
that she declined to participate in a rape examination and did not seek medical care
for the injuries she sustained as a result of the assaults.3
Appellant’s trial counsel also cross-examined Graham about her relationship
with a former boyfriend, James Broussard. But when Graham was asked whether
she and Broussard ever had a “domestic” incident, the State objected under Texas
Rules of Evidence “404 and 608, unless [counsel] wants to open that door.”4 Before
the trial court ruled on the objection, appellant’s counsel withdrew the question.
Henryona testified at trial as an eyewitness to part of the events giving rise to
the charges against appellant, though she stated that she did not want to do so.
Henryona explained that she was at work when Graham called to tell her what had
happened. She denied having a private conversation with Graham when she returned
to the apartment but decided that appellant should leave—which he refused to do.
3
Graham attributed her decision not to participate in a rape examination or to seek
medical treatment to a misunderstanding about the definition of rape and lack of
financial resources.
4
These rules of evidence concern the admissibility of character evidence, see TEX.
R. EVID. 404, and evidence of a witness’s character for truthfulness or
untruthfulness, see TEX. R. EVID. 608.
5
Henryona also stated that she witnessed appellant choke Graham as she called 911,
so she immediately “yanked” appellant away from Graham. Henryona further
testified that appellant had threatened himself with the scissors, but not Graham.
Henryona did not recall what she told the police on the night of the assaults.
But after the State refreshed her recollection by showing her video recordings of her
statements to police, she acknowledged that she told the police (1) she saw a knife
on her dresser when she arrived home on the night of incident, (2) she saw appellant
approach Graham with scissors, (3) Graham gasped for air as appellant choked and
hit Graham, and (4) she had placed the knife and the scissors in the kitchen sink
before police arrived.
Henryona also testified that she saw Graham strike appellant first, before
appellant choked Graham, but acknowledged she did not give that information to the
police.5 Additionally, Henryona denied asking Graham not to testify against
appellant, her brother.
In his defense, appellant presented the testimony of a single witness—a crisis
intervention liaison for the Galveston County District Attorney’s Office. The liaison
testified that Graham visited her office in June 2018. The notes taken by the liaison
5
Henryona testified that she attempted to subsequently disclose that information to
the State when she met with prosecutors a few days before trial, but she was
interrupted by one of the prosecutors at the meeting.
6
to memorialize the meeting reflected that Graham told the liaison that appellant had
not “c[o]me at her with the knife in a threatening manner.”
After considering the testimony of the witnesses and the evidence admitted at
trial, the jury returned a “guilty” verdict as to both charges and, after finding two
enhancement paragraphs “true,” assessed appellant’s punishment at 50 years’
confinement.6
New trial hearing
Appellant moved for a new trial on the ground that newly discovered evidence
probably would have resulted in a different verdict had the jury considered it—
specifically, testimony from Henryona that no deadly weapon was used during his
altercation with Graham and about Graham’s dishonesty, and testimony from
Broussard that Graham had fabricated a story about an assault in the past.
A number of witnesses testified at the evidentiary hearing on appellant’s
motion for new trial, including Henryona, Broussard, and appellant.7 Henryona
testified that had she been asked about Graham’s propensity for truthfulness at trial,
6
The enhancement paragraphs alleged that, in September 2009, appellant was
convicted of the felony offense of attempted robbery and, in November 2013, was
convicted of unlawful possession of a firearm by a felon. The State presented
evidence of these prior offenses during the punishment phase of trial.
7
A fourth witness, appellant’s older brother Richard Jones, also testified that
appellant’s trial counsel had refused to allow his testimony at trial. Jones testified
that he wanted to tell the jury appellant was “not the criminal that y’all are making
him out to be” and, though appellant had problems with women in the past, none
had involved knives or scissors.
7
she would have described Graham as a liar. Henryona further stated that she had not
seen anyone point a knife or scissors in the altercation between appellant and
Graham. And that she had given an affidavit swearing to that fact and to the falsity
of the charges against appellant to private investigators retained by defense counsel
before trial. However, when the State cross-examined Henryona about her
statements informing the 911 operator that appellant had grabbed scissors and taken
them toward Graham, she refused to answer and the trial court dismissed her from
the witness stand.
Broussard testified that he and appellant are friends and that he had a romantic
relationship with Graham before she dated appellant. Broussard testified, during
that relationship, Graham called the police on him once—which resulted in him
being arrested. According to Broussard, Graham turned a knife on him and he
responded by “pull[ing] one back.” Broussard further stated an unidentified source
told him that Graham “had pulled a knife” on another man she previously dated. In
Broussard’s opinion, Graham had a history of fabricating assault claims and told a
“bunch of lies” about appellant at trial.
Broussard also disclosed that appellant’s counsel called him before trial and
they discussed everything Broussard knew about Graham, including the allegations
that she had pulled knives on other people. Broussard explained that he did not
testify at trial regarding those allegations because he had to work.
8
Appellant also testified at the hearing. He stated Graham was the instigator
of their altercation—that she “started beating on” him and pulled a knife on him first.
However, it did not occur to him to tell the police about Graham’s alleged conduct.
Appellant further stated that he asked trial counsel to call Broussard as a
witness months before trial, but counsel did nothing with the information Broussard
had shared. And he had asked trial counsel, during the guilt phase of trial, to testify
on his own behalf that Graham had pulled the knife first—but counsel refused and
told appellant that testifying would “hurt [him] in the long run.”8 Appellant asserted
he did not understand that it was his right to testify.
Appellant acknowledged the evidence, presented during the punishment phase
of trial, of his status as a habitual offender. He denied, however, that trial counsel
advised him that if he were to testify in his own defense the State could introduce
his prior felony convictions. Appellant also stated he did not know whether his
counsel had a strategic reason for advising him not to testify.
Standard of Review
The United States Constitution, the Texas Constitution, and a Texas Code of
Criminal Procedure guarantee an accused the right to assistance of counsel. See U.S.
CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art. 1.051. As
8
Appellant’s trial counsel did not appear or testify at the new trial hearing. Appellant
was represented at the hearing on his motion for new trial by appellate counsel.
9
a matter of state and federal law, this right includes the right to reasonably effective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex
parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).
To prevail on a claim of ineffective assistance of counsel under Strickland,
the defendant must prove by a preponderance of the evidence that (1) counsel’s
performance was deficient and (2) a reasonable probability exists that but for
counsel’s deficient performance, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687, 694. Under the first prong of the Strickland
test, we presume trial counsel performed within professional norms. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under the second prong, a
reasonable probability is a “probability sufficient to undermine confidence in the
outcome.” See Strickland, 466 U.S. at 694; Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002).
A failure to make a showing under either prong of the Strickland test defeats
a claim for ineffective assistance. Strickland, 466 U.S. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.”); Rylander v. State, 101 S.W.3d 107,
110 (Tex. Crim. App. 2003) (failure to prove either Strickland prong defeats claim
of ineffective assistance of counsel).
10
Allegations of ineffectiveness must be firmly founded in and affirmatively
demonstrated by the record. Thompson v. State, 9 S.W.3d at 813. An appellant must
overcome the strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance or might reasonably be considered sound trial
strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).
In ineffective assistance of counsel cases, the record rarely provides the
reviewing court with an opportunity to conduct a fair evaluation of the merits. See
Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Randon v. State, 178
S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2005, no pet.). As a result, when
the record is silent as to trial counsel’s strategy, we will not conclude that appellant
received ineffective assistance unless the challenged conduct was “so outrageous
that no competent attorney would have engaged in it.” Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005) (quotation omitted); Wood v. State, 260
S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“We will not
speculate to find trial counsel ineffective when the record is silent on counsel’s
reasoning or strategy.”). In most cases, the appellant is unable to meet the first prong
of the Strickland test because the record is underdeveloped and does not adequately
reflect the alleged failings of trial counsel. See Mata, 226 S.W.3d at 430.
11
Ineffective Assistance of Counsel
Here, appellant raises a single, two-part issue contending his trial counsel was
ineffective (1) by not allowing appellant to testify in his own behalf as to a theory of
self-defense, and (2) not presenting evidence of Graham’s history of assaultive
conduct.
A. Failure to permit appellant to testify
Appellant asserts under his first contention that his trial counsel was
ineffective “because he failed to permit appellant to produce evidence in his own
defense as to his justification of self-defense.” We understand appellant to be
arguing that he wanted to testify during the trial as he did at the hearing on his motion
for new trial—where he stated Graham pointed a knife at him first. Appellant
maintains that because he and Graham were the only two people present during the
altercation, and the jury heard only Graham’s version of the events, his testimony on
self-defense “would have been highly relevant and . . . created a reasonable
probability that the result of the trial would have different.”
The defendant has the ultimate right to testify in his own defense. See Johnson
v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005). Because counsel carries the
burden of informing the defendant of that right, including advising him of the
advantages and disadvantages of doing so, Strickland provides the appropriate
12
framework for addressing a claim that counsel should have called the defendant to
testify. See id. at 235–36.
In order to establish that trial counsel’s assistance was ineffective on this
basis, it is necessary for an appellant to demonstrate where the record shows that he
asserted his right to testify and that his attorney failed to protect that right. See
Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The denial of the
right to testify is a trial error, not a structural error, and thus is subject to a harm
analysis. Johnson, 139 S.W.3d at 238. “A court assesses the effect of any alleged
error by looking at the defendant’s anticipated testimony, the evidence admitted at
trial, the jury charge, and other factors.” Agosto v. State, 288 S.W.3d 113, 116 (Tex.
App.—Houston [1st Dist.] 2009, no pet.).
In this case, although appellant moved for a new trial, he did not raise an
ineffective assistance of counsel claim in that motion. Instead, appellant based his
motion for new trial on newly discovered evidence from Henryona that there was no
deadly weapon used during the altercation and that Graham was a dishonest person,
and from Broussard that Graham had drawn a knife in previous altercations with
men she dated. It was in connection with these new trial grounds that appellant
asserted he “asked to take the stand on [his own] behalf, and [trial counsel]
refused[.]” According to appellant, he told trial counsel he wanted to tell “the truth
13
about what really happened . . . when [Graham] pulled a knife on [him,]” but counsel
advised him doing so would “hurt [him] in the long run.”
This testimony from appellant at the new trial hearing is the first, and only,
reference in the record to appellant’s desire to testify on his own behalf and counsel’s
advice in that regard. When, as here, trial counsel does not appear at the hearing,
“an affidavit from trial counsel becomes almost vital to the success of an ineffective
assistance claim.” Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d). But there is no such affidavit from trial counsel in this
case. Aside from appellant’s own statement that his trial counsel advised him that
testifying would “hurt [him] in the long run,” the record is silent as to counsel’s trial
strategy.
When the record is “nearly bare,” as here, on counsel’s trial strategy for a
particular course of action, we cannot speculate to find trial counsel ineffective on
appeal. See Randon, 178 S.W.3d at 102 (holding that “nearly bare” record was
inadequate to allow court of appeals to determine counsel’s effectiveness);
Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d) (refusing to speculate counsel was ineffective when record was silent as to
counsel’s trial strategy).
“Indeed, such speculation could just as easily support the notion that trial
counsel acted reasonably and competently in making the decisions now forming the
14
basis for the appellant’s ineffective assistance claim.” Stults, 23 S.W.3d at 209 n.6.
Accepting as true appellant’s statement that trial counsel advised him that testifying
would be disadvantageous, there are a number of reasons why counsel might give
that advice. For example, if a defendant testifies in his own defense at trial, he might
reveal prior convictions. Martinez v. State, No. 14-01-00674-CR, 2002 WL
1354238, at *3 (Tex. App.—Houston [14th Dist.] June 20, 2002, no pet.) (not
designated for publication) (noting numerous reasons for not calling defendant to
testify, including prior convictions and fact that many defendants make poor
witnesses, and declining to find counsel ineffective for failing to call defendant to
testify where record was silent as to counsel’s reasoning and strategy). A strategic
decision to not open the door to such potentially adverse evidence would hardly be
“so outrageous that no competent attorney” would have acted in that manner in this
case, particularly given appellant’s prior felony convictions for attempted robbery
and unlawful possession of a firearm by a felon. See Goodspeed, 187 S.W.3d at 392.
Indeed, instead of waiting for the punishment stage to introduce appellant’s prior
felony convictions, the State could have introduced them at the guilt/innocence stage
had appellant testified.
Or, counsel might have elected not to elicit certain testimony because trial
counsel determined it would not favorably impress the jury or advance appellant’s
position—given that the jury charge inquired about whether appellant used a knife
15
or scissors during the assault and appellant’s proposed testimony concerned only the
part of the altercation involving a knife and did not address the allegations that he
also jabbed at Graham with scissors.
Accordingly, because the record fails to shed any light on the reasons why
appellant’s trial counsel did not call him to testify, and in light of appellant’s prior
convictions and other potential reasons why counsel may have strategically
determined not to call appellant as a witness at trial, we conclude that appellant has
not overcome the legal presumption that his counsel acted within the wide range of
professional norms by not calling appellant to testify in his own defense. See, e.g.,
Salinas, 163 S.W.3d at 740–41 (holding that where counsel advised appellant against
testifying because of his prior convictions, no evidence in record showed that
counsel failed to protect appellant’s right to testify).9
9
See also e.g., Brown v. State, No. 08-12-00026-CR, 2014 WL 172521, at *5 (Tex.
App.—El Paso Jan. 15, 2014, pet. ref’d) (not designated for publication) (holding
defendant could not overcome presumption of counsel’s competence because, by
not examining his trial counsel in connection with motion for new trial, defendant
failed “to create a record and prevent[ed] [appellate court] from according counsel
an opportunity to explain [his] actions before being condemned as unprofessional
and incompetent”); Clark v. State, Nos. 14-10-00666-CR & 14-10-00667-CR, 2011
WL 4361483, at *5 (Tex. App.—Houston [14th Dist.] Sept. 20, 2011, pet. ref’d)
(mem. op., not designated for publication) (declining to hold counsel ineffective
because “[n]o part of this record . . . sheds any light on the reasons why counsel did
not call [defendant] to testify”).
16
B. Failure to present evidence of Graham’s prior bad acts
Appellant also contends that his trial counsel was ineffective by not presenting
evidence that Graham had a “history of wielding knives against previous boyfriends
and then prosecuting them for assaulting her.” According to appellant, his counsel
was aware of this evidence but failed to timely subpoena Broussard to testify at trial.
Appellant asserts this evidence would have corroborated his theory of self-defense.
Contrary to appellant’s suggestion, the record does not indicate that trial
counsel failed to explore the evidence of Graham’s alleged knife-wielding tendency.
The testimony at the new trial hearing indicated that appellant’s counsel contacted
Broussard before trial and discussed Broussard’s knowledge of Graham and her past
relationships, but Broussard declined to testify because the trial setting conflicted
with his work schedule. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App.
2004) (holding that to obtain relief on ineffective assistance of counsel claim based
on uncalled witness, defendant must show witness had been available to testify and
testimony would have been of some benefit to defense).
In addition, appellant’s trial counsel attempted to elicit testimony from
Graham on cross-examination about whether she had been involved in a “domestic
incident” with Broussard, but counsel’s question drew an objection from the State
that the testimony was inadmissible character evidence, “unless [counsel] want[ed]
to open the door.” In response to the State’s objection, appellant’s trial counsel
17
withdrew the question and did not elicit any further testimony about Graham’s
alleged assaultive conduct toward Broussard or any other former boyfriend.
The record is silent as to trial counsel’s reason for withdrawing the question
in response to the State’s objections and as to what counsel might have “open[ed]
the door” by continuing with this line of cross-examination. Without some
explanation of the strategic decisions made by his trial counsel, appellant cannot
rebut the legal presumption of competent counsel, and we are unable to conclude
that counsel’s assistance fell below prevailing norms. See Bone v. State, 77 S.W.3d
828, 836 (Tex. Crim. App. 2002) (defense counsel should be given opportunity to
explain actions before being condemned as unprofessional and incompetent); see
also Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d) (record did not support ineffective assistance claim where no evidence
was offered to explain counsel’s reason for failing to present mitigating evidence).
Having concluded that appellant has not satisfied the Strickland test with
respect to either of his complaints about his trial counsel’s performance, we overrule
appellant’s sole issue on appeal.
18
Conclusion
Accordingly, based on the record and arguments presented to us, we affirm
the judgment of the trial court.
Terry Adams
Justice
Panel consists of Justices Goodman, Landau, and Adams.
Do not publish. TEX. R. APP. P. 47.2(b).
19