Noel Young Anderson v. State ( 2020 )

Affirmed and Opinion Filed December 21, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00959-CR
NOEL YOUNG ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81903-2018
MEMORANDUM OPINION
Before Chief Justice Burns,1 Justice Pedersen, III, and Justice Evans
Opinion by Justice Pedersen, III
Appellant Noel Young Anderson pleaded guilty to the charge of continuous
sexual abuse of a child under fourteen years of age. The jury found him guilty and
assessed his punishment at fifty years’ confinement in the Texas Department of
Criminal Justice Correctional Institutional Division. In a single issue, appellant
contends that he was provided ineffective assistance of counsel at trial. We affirm
the trial court’s judgment.
1
The Honorable David L. Bridges, Justice, participated in the submission of this case; however, he did
not participate in the issuance of this memorandum opinion due to his death on July 25, 2020. Chief Justice
Robert Burns has substituted for Justice Bridges in this cause.
Appellant’s argument focuses solely on the voir dire process. He complains
that his attorney (1) never informed the venire panel that appellant had the right not
to testify; (2) never informed the panel that if he chose not to testify, his failure to
testify could not be considered by the jury as a circumstance against him; and (3)
“[m]ost importantly,” never asked the panel—either collectively or individually—if
appellant did not testify, whether they could and would follow an instruction from
the court not to consider his failure to testify as a circumstance against him.
We evaluate the effectiveness of counsel under the standard enunciated in
Strickland v. Washington. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim.
App. 1999). To prevail on an ineffective assistance of counsel claim, appellant must
prove by a preponderance of the evidence that (1) counsel’s representation fell below
an objective standard of reasonableness, and (2) there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. See Strickland, 466 U.S. 668, 687–88 (1984); Salinas v. State, 163
S.W.3d 734, 740 (Tex. Crim. App. 2005). Our review is rooted in a strong
presumption of counsel’s competence. See Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). “Ineffective assistance of counsel claims are not built on
retrospective speculation; they must ‘be firmly founded in the record.’” Bone v.
State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at813–14). We rarely entertain ineffective assistance of counsel claims on direct
appeal because of an inadequate record, but there are exceptions to this rule. See
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Johnson v. State, 172 S.W.3d 6, 13 (Tex. App.—Austin 2005, pet. ref’d). In this
case, the record compels the conclusion that appellant cannot establish the prejudice
prong of Strickland’s test.
Appellant’s privilege to choose not to testify and to have that choice be free
from consideration against him is well settled in both federal and Texas law. U.S.
CONST. amend. V; TEX. CODE CRIM. PROC. ANN. art. 38.08. Appellant attaches the
reporter’s record of his trial counsel’s voir dire, and the record confirms his claim
that his attorney did not address the issue of appellant’s testifying with the venire
panel. But the entire record of the voir dire proceedings establishes that the panel
was in fact instructed and questioned about this issue.
Initially, the trial court conducted a relatively lengthy voir dire before the
attorneys took their turns addressing the panel. During its examination, the court
explained:
[T]the burden of proof is on the State to prove beyond a reasonable
doubt the guilt of a Defendant. And a Defendant in a case, whether it’s
at guilt or punishment, has the right to remain silent, Fifth Amendment
right. We’ve all heard that. This is where it actually comes into play.
And if a person accused chooses not to testify, that fact cannot be taken
against him. You just ignore it and go and consider what you do have,
the information. Is there anyone that cannot do that? I take it by your
silence that you can, and you will.
Next the prosecutor spoke to the panel, and he addressed the issue of the defendant’s
testimony as well:
[T]he Defendant still has a Fifth Amendment right not to testify. So
even though he has already pled guilty, he has a Fifth Amendment
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conditional right that he doesn’t have to take that stand and testify if he
doesn’t want to. And we cannot hold that against him.
And I won’t go person by person, I’ll just go row by row. Can
everybody promise, at least on the first row, promise me that they won’t
hold it against him if he chooses not to testify?
The record indicates that every member of the panel, when asked that question one
row at a time, responded affirmatively.
It is apparent, thus, that each of appellant’s concerns was addressed during
voir dire: (1) potential jurors were informed that appellant had the right not to testify;
(2) they were informed that if he chose not to testify, his failure to testify could not
be considered by the jury as a circumstance against him; and (3) they were asked
whether—if appellant did not testify—they could and would follow that imperative
not to hold against him his choice not to testify; they answered affirmatively. In fact,
they were asked and responded affirmatively twice.
Finally, as appellant acknowledges, the trial court correctly instructed the jury
on appellant’s privilege:
Our law provides that a defendant may testify in his own behalf if he
elects to do so. This, however, is a privilege accorded a defendant, and,
in the event he elects not to testify, that fact cannot be taken as a
circumstance against him. In this case, the defendant has elected not to
testify, and you are instructed that you cannot and must not refer or
allude to that fact throughout your deliberations or take it into
consideration for any purpose whatsoever as a circumstance against the
defendant.
Appellant contends that he was prejudiced because—in the absence of his
attorney’s asking potential jurors if they could and they would follow an instruction
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from the court not to consider appellant’s failure to testify as a circumstance against
him—“there is no way to know from the record whether each juror selected could
and did follow the instruction given to them in the Charge regarding [appellant’s]
failure to testify.” We disagree for two reasons. First, we do know from the record
that the jurors were asked this question and that they committed to following the
instruction given by the trial court. And second, when we examine whether an
appellant made the necessary showing of prejudice, we are to presume that the jury
“acted according to law” and “reasonably, conscientiously, and impartially appl[ied]
the standards that govern the decision.” Strickland, 466 U.S. at 694–95. This means
we must assume that the jury followed the instructions in the charge. See Miles v.
State, 204 S.W.3d 822, 827–28 (Tex. Crim. App. 2006) (“in the absence of evidence
to the contrary, we will assume that the jury followed its written instructions”);
Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002) (“[w]e assume that the
jury followed the instructions as given”). Here, there is no evidence in the record
from which we could conclude that the jury disregarded the court’s instruction
concerning appellant’s decision not to testify.
To show prejudice, appellant “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. In this context, “[a] reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.Given the full voir dire record, the correct statement of the law contained in the
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court’s charge, and the seriousness of the underlying offense, the appellate record
does not show a reasonable probability that—had appellant’s counsel asked the
venire the same question for a third time—his sentence would have been lower. See
Villatoro v. State, No. 05-18-00639-CR, 2019 WL 3940971, at *6 (Tex. App.—
Dallas Aug. 21, 2019, pet. ref’d) (mem. op.) (to prove prejudice appellant must show
reasonable probability exists that court would have imposed lower sentence). Our
confidence in the outcome of appellant’s trial is not undermined by appellant’s
challenge. See Strickland, 466 U.S. at 695–96.
“An appellant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009). Because we conclude appellant cannot satisfy the prejudice
prong, we overrule his single issue.
We affirm the trial court’s judgment.
/Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE
190959f.p05
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NOEL YOUNG ANDERSON, On Appeal from the 366th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 366-81903-
No. 05-19-00959-CR V. 2018.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Chief Justice Burns and
Justice Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 21st day of December, 2020.
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