Quardrion Javontae Atkins v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00361-CR
No. 07-18-00362-CR
No. 07-18-00363-CR
No. 07-18-00364-CR
QUARDRION JAVONTAE ATKINS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 432nd District Court
Tarrant County, Texas1
Trial Court Nos. 1505245D, 1505243D, 1505244D, 1505857D
Honorable Ruben Gonzalez, Presiding
March 18, 2020
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Quardrion Javontae Atkins, appellant, was convicted of two counts of aggravated
robbery, two counts of endangering a child with criminal negligence, and evading arrest
1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Second Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
with a motor vehicle. In his sole issue on appeal, he challenges the effectiveness of his
trial counsel. We affirm.
Background
Two men, Jose Saavedra and Daniel Sperandeo, were robbed at gunpoint within
minutes of each other in the same Arlington neighborhood. After Saavedra was robbed,
he called 911 and reported that the two men who robbed him fled in a gray SUV with a
paper license plate. Sperandeo also said that the two suspects got into a gray SUV, with
someone else driving.
Arlington police officers quickly encountered a gray Kia Sportage with a paper
license plate nearby and engaged in a pursuit. When the Kia was apprehended, the
officers positioned their vehicles for a felony stop and commanded the occupants to exit
the vehicle. Three men were in the car: appellant, who was driving; Jalen Cook, the front
passenger; and Danny Turner, the backseat passenger. A baby girl, who was the
daughter of Turner’s girlfriend, was also in the backseat.
During a police interview shortly after the robbery, Sperandeo described the height,
hair, and race of the men who robbed him, and described the color of the guns they used.
Sperandeo was taken to a field show-up, where he recognized two of the three men as
the perpetrators. Saavedra was unable to see the faces of the men who robbed him
because they had pulled their T-shirts over their faces. When Saavedra was taken to the
field show-up, he confirmed that the suspects and car matched the description he had
provided to police.
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Detective Marjaina Perez interviewed Turner at the police station. After
interviewing Turner, Perez determined that appellant was one of the gunmen in both the
robbery of Saavedra and the robbery of Sperandeo.
At trial, Detective Perez testified about her interview of Turner. She agreed that
Turner provided details that helped her confirm her belief that appellant and Turner were
the gunmen involved in Sperandeo’s robbery and that appellant and Cook were the
gunmen involved in Saavedra’s robbery. Appellant’s trial counsel objected to this portion
of Detective Perez’s testimony on relevance and hearsay grounds. The trial court
overruled both objections.
The jury found appellant guilty of all charges and sentenced him to 30 years’
imprisonment on each of the aggravated robbery counts, five years on the evading arrest
count, and two years on each of the criminally negligent child endangerment counts.
Appellant timely filed this appeal.
Analysis
Ineffective Assistance of Counsel Claim
In his sole appellate issue, appellant claims he was denied effective assistance of
counsel because his trial attorney failed to object to Detective Perez’s testimony about
Turner’s statements on Confrontation Clause grounds.
The Sixth Amendment guarantees a criminal defendant the effective assistance of
counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. CONST.
amend. VI. To prevail on a claim that counsel was ineffective, a party must prove two
prongs: (1) that counsel’s representation fell below an objective standard of
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reasonableness and (2) there is a reasonable probability that, but for counsel’s deficiency,
the result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).
When evaluating counsel’s effectiveness under the first prong, we review the
totality of the representation and the particular circumstances of the case to determine
whether counsel provided reasonable assistance under all the circumstances and
prevailing professional norms at the time of the alleged error. Strickland, 466 U.S. at 688-
89. We indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)
(en banc).
Under the Confrontation Clause of the Sixth Amendment, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI; see also Burch v. State, 401 S.W.3d 634, 636 (Tex.
Crim. App. 2013). Appellant contends the admission of Detective Perez’s testimony
violated his Sixth Amendment rights because he had no opportunity to cross-examine
Turner himself. Although appellant’s trial counsel objected to Detective Perez’s
statements about her interview with Turner on relevance and hearsay grounds, he did not
raise an objection under the Confrontation Clause.
No hearing was conducted on appellant’s claim of ineffective assistance, so his
trial counsel had no opportunity to explain why he failed to object to the testimony on
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Confrontation Clause grounds. Ordinarily, trial counsel should be afforded an opportunity
to explain his actions before being denounced as ineffective. Menefield v. State, 363
S.W.3d 591, 593 (Tex. Crim. App. 2012). In the absence of specific explanations for
counsel’s decisions, a record on direct appeal will rarely contain sufficient information to
evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). 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.” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005)).
Appellant contends that this case “is one of those rare cases where the record is
adequately developed for the court to rule on his claim of ineffective assistance of
counsel.” In support of this assertion, he notes that his trial counsel clearly sought to
exclude the evidence, because he objected to the evidence of Turner’s statements and
to the prosecutor’s arguments about them—just not on Confrontation Clause grounds.
Therefore, appellant concludes, his counsel’s failure to object on other grounds “could not
have possibly been the result of strategy.” We are not persuaded by this argument.
The Menefield case is instructive. In that case, the Court of Criminal Appeals
considered an ineffective assistance claim based on the failure to make a Confrontation
Clause objection. Id. at 592. Specifically, Menefield argued that his lawyer was
ineffective because he did not object to the admission of a laboratory drug report on
Confrontation Clause grounds. Id. The Court of Criminal Appeals disagreed. In its
opinion, the high court noted that the laboratory report was inadmissible because its
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author had not been called to testify, but that the record did not reflect why counsel failed
to raise a Confrontation Clause objection. Id. at 593. It explained,
We do not know why counsel failed to raise a Confrontation Clause
objection because the record is silent on the matter. Perhaps there was no
good reason, and counsel’s conduct was deficient. Or perhaps the State
could (and with an objection would) have brought [the report’s author] to the
courtroom to testify, and counsel realized that cross-examining [him] would
not benefit his client. Neither trial counsel nor the State have been given
an opportunity to respond to appellant’s allegation. Consequently, we
conclude that the record fails to show deficient performance.
Id.
The instant case presents the same concern. We have before us no indication of
the reason appellant’s trial counsel did not assert appellant’s right to confront and cross-
examine Turner but instead raised relevancy and hearsay objections. As expressed in
Menefield, one could conclude that there was a legitimate reason, such as the desire to
exclude the testimony while avoiding a potentially problematic cross-examination of
Turner, or one could conclude the opposite. Absent evidence of counsel’s trial strategy,
we cannot conclude that no competent attorney would have declined to make a
Confrontation Clause objection. Consequently, appellant has not met the first prong of
the Strickland test to show deficient performance.
Conclusion
Accordingly, the trial court’s judgments are affirmed.
Judy C. Parker
Justice
Do not publish.
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