Adrian Monroe Martin v. the State of Texas ( 2023 )

Opinion filed August 10, 2023
In The
Eleventh Court of Appeals
__________
Nos. 11-22-00150-CR & 11-22-00151-CR
__________
ADRIAN MONROE MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause Nos. 13472 & 13601
MEMORANDUM OPINION
Appellant, Adrian Monroe Martin, was indicted under separate cause numbers
for the offenses of burglary of a building (trial court cause no. 13472), a state jail
felony, and aggravated robbery (trial court cause no. 13601), a first-degree felony.
TEX. PENAL CODE ANN. §§ 29.03, 30.02(c)(1) (West 2019). Appellant entered an
open plea of guilty to each offense and, after finding Appellant guilty of both
offenses, the jury assessed Appellant’s punishment at two years’ confinement for the
burglary-of-a-building offense and thirty-five years’ imprisonment for the
aggravated-robbery offense; the trial court sentenced Appellant accordingly and
ordered that Appellant’s sentences be served concurrently. Subsequently, Appellant
filed a motion for new trial and claimed, among other things, that his trial counsel’s
representation was deficient and ineffective. The trial court denied Appellant’s
motion without a hearing.
In his sole issue on appeal, Appellant argues that his trial counsel provided
ineffective assistance during the punishment phase of his trial; therefore, he asserts,
the trial court erred when it denied Appellant’s motion for new trial on punishment.
We affirm.
I. Factual Background
Appellant’s open plea of guilty to the offense of aggravated robbery was
entered in exchange for the State’s agreement not to indict him for capital murder.
During the punishment phase, the State presented evidence that Appellant had
assisted Markes Buchanan and Tristan Perrigo in committing this offense in which
Tashaun Beavers was shot and killed. Appellant had arranged for Buchanan and
Perrigo to meet and “hit a lick.” Buchanan and Perrigo then went to Beavers’s
residence and, once inside, Buchanan shot and killed Beavers. For his participation
and silence, Appellant received three thousand dollars from Buchanan.
Appellant also entered an open plea of guilty to the burglary-of-a-building
offense. The State presented evidence that on September 30, 2020, Appellant “broke
into” a 7-Eleven and another business called Lulu’s. Appellant claimed that he did
not remember breaking into the 7-Eleven because he was “really high,” although he
admitted at trial that his presence in the 7-Eleven was captured by the store’s
surveillance camera. Appellant remembered breaking into Lulu’s on the same night.
2
On appeal, Appellant asserts a claim of ineffective assistance of counsel.
Specifically, Appellant maintains that his trial counsel’s representation was deficient
and ineffective because his trial counsel failed to call Patricia Shipp to testify on
Appellant’s behalf as a witness who would present mitigating testimony during the
punishment phase of his trial.
II. Standard of Review
We review an ineffective-assistance-of-counsel claim under a two-part
standard. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). To succeed on a claim of ineffective
assistance of counsel, Appellant must satisfy both prongs of the Strickland standard:
performance and prejudice. Strickland, 466 U.S. at 687. First, Appellant must show
that trial counsel’s performance was deficient in that it fell below an objective
standard of reasonableness. Perez, 310 S.W.3d at 892–93. Second, Appellant must
show that trial counsel’s deficient performance prejudiced his defense, i.e., there is
a reasonable probability that the result of his trial would have been different but for
trial counsel’s errors. Id. at 893; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999) (citing Strickland, 466 U.S. at 687–88). A reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 694. Appellant must meet both prongs to prevail. Perez, 310
S.W.3d at 893.
When a claim of ineffective assistance of counsel is raised in a motion for new
trial and later reasserted on appeal, we “analyze the ineffective assistance of counsel
issue as a challenge to the denial of the motion for new trial.” Minassian v. State,
490 S.W.3d 629, 641 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting
Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d)); see also Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012),
3
overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App.
2018); Lopez v. State, No. 11-15-00313-CR, 2018 WL 4656270, at *3 (Tex. App.—
Eastland Sept. 28, 2018, no pet.) (mem. op., not designated for publication). We
review a trial court’s denial of a motion for new trial for an abuse of discretion.
Collier v. State, 528 S.W.3d 544, 546 (Tex. App.—Eastland 2016, pet. ref’d). A
trial court abuses its discretion if “no reasonable view of the record could support
the trial court’s ruling.” Id.III. Analysis
Appellant’s claim of ineffective assistance of counsel focuses on the
punishment phase of his trial. Appellant contends that his trial counsel failed to
conduct a reasonable investigation into Appellant’s background in order to develop
mitigating evidence to present to the jury during the punishment phase. Specifically,
Appellant argues that his trial counsel was ineffective because he did not identify
and present Patricia Shipp—a functionary at the Nolan County jail where he was
confined before and during trial—as a witness.
Because appellate review of trial counsel’s representation is highly
deferential, we presume that counsel’s actions fell within the wide range of
reasonable and professional assistance. Strickland, 466 U.S. at 689; Garza v. State,
213 S.W.3d 338, 348 (Tex. Crim. App. 2007) (citing Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002)). To overcome the presumption of effective
professional assistance, an appellant’s claim must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 814. If counsel’s reasons for his conduct do not appear in
the record and there is at least the possibility that the conduct could have been
grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny
relief on an ineffective-assistance-of-counsel claim that is raised, such as in this case,
4
on direct appeal. Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.
Generally, the record on direct appeal is undeveloped and rarely sufficient to
overcome the presumption that trial counsel rendered effective assistance.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (citing
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). A record that
provides no explanation for trial counsel’s actions or inactions will not overcome the
presumption that, under the circumstances, the challenged conduct might be
considered sound trial strategy. Thompson, 9 S.W.3d at 813–14; Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As such, if trial counsel did not have
an opportunity to explain the challenged actions, we will not conclude that those
actions constituted deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see also Goodspeed, 187 S.W.3d at
392; Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (“[T]rial
counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.”).
To obtain relief based on the claim that trial counsel should have called a
witness to testify at trial, the defendant must show that the witness was available to
testify and that the testimony sought from the witness would have been of some
benefit to his defense. Perez, 310 S.W.3d at 896–97; King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983); Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (citing Ex parte White, 160 S.W.3d 46, 52 (Tex.
Crim. App. 2004)). To meet the availability requirement, the uncalled witness must
testify at a motion-for-new-trial hearing or attest in an affidavit that she was available
5
to testify at the defendant’s trial. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex.
Crim. App. 2007).
In this case, Appellant filed a motion for a new trial, which included a
declaration by Shipp. In her declaration, Shipp stated that during the punishment
phase of Appellant’s trial she would have testified about Appellant’s progress while
he was confined in the Nolan County jail. Shipp explained that Appellant managed
his trauma and kept his anger under control during his confinement. We note that,
although Appellant filed a motion for new trial, the trial court did not hold a hearing
on the motion. Instead, the trial court denied Appellant’s motion after it considered
the motion, its attachments, and an affidavit submitted by Appellant’s trial counsel
in response to Appellant’s motion.
Importantly, the record before us contains explanations from trial counsel
concerning his trial strategy and trial preparation. In his affidavit, trial counsel
addressed why Shipp was not called as a witness. Trial counsel stated that he was
unaware that Shipp was either employed at the Nolan County jail or acquainted with
Appellant because, when he asked Appellant about the availability of potential
witnesses who could testify on his behalf at trial, Appellant never mentioned Shipp.
Furthermore, Shipp never contacted trial counsel. Despite this, Appellant maintains
that trial counsel would have been able to locate Shipp if he had performed a
reasonable investigation.
The failure to uncover and present mitigating evidence cannot be justified if
trial counsel has not conducted a thorough investigation of the defendant’s
background. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st
Dist.] 2005, pet. dism’d). In determining whether trial counsel conducted an
adequate investigation to uncover potential mitigating evidence and then failed to
present such evidence, we focus on whether the investigation that was performed
6
supports counsel’s decision (to not offer mitigating evidence). In other words, was
counsel’s decision reasonable under the circumstances. See Wiggins v. Smith, 539
U.S. 510, 522–23 (2003); Goody v. State, 433 S.W.3d 74, 80 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d).
An attorney’s decision not to investigate or to limit the scope of his
investigation is given a “heavy measure of deference” and is assessed in light of all
the circumstances to determine whether reasonable professional judgment would
support the decision that counsel ultimately made. Strickland, 466 U.S. at 691. The
reasonableness of counsel’s actions may be determined or substantially influenced
by the defendant’s own statements or actions. Id. Counsel’s actions are usually
based, quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant. Id. When a defendant has indicated to his
trial counsel reason to believe that it would be fruitless or even harmful to pursue or
investigate certain matters, counsel’s failure to act or to investigate may not later be
challenged as unreasonable. Id.Here, trial counsel investigated, located, and identified potential witnesses to
present at trial despite Appellant’s desire that he not do so. In his affidavit,
Appellant’s trial counsel noted that his focus from the outset was on the punishment
that could be assessed against Appellant. Therefore, he frequently asked Appellant
if he had “any witnesses in mind, who might testify to [Appellant’s] otherwise good
character.” On one occasion, Appellant’s trial counsel visited with Appellant at
length and again asked Appellant to suggest potential witnesses to present at trial.
Appellant replied, “I can’t think of anyone - I’m pretty much alone out there.”
Appellant’s trial counsel even suggested that Appellant’s grandmother and former
girlfriend were potential witnesses, but Appellant did not wish for either of them to
testify.
7
Despite Appellant’s reluctance, Appellant’s trial counsel contacted
Appellant’s former girlfriend, Lauren Martinez. In speaking with Martinez, it
became clear to trial counsel that Martinez was still fond of Appellant and that she
was willing to testify. Therefore, trial counsel presented Martinez as a witness. At
trial, Martinez praised Appellant, and testified that she could not say anything
negative about him; she claimed that he is an amazing person and a hard worker.
Martinez further testified that Appellant is a good father to their daughter and that
she and their daughter visited him frequently during his confinement in the Nolan
County jail because his daughter misses him. Martinez’s grandparents also testified
on Appellant’s behalf. Martinez’s grandfather testified that Appellant was “always
very, very helpful, very respectful, and [he] never knew [Appellant] to be in trouble.”
Martinez’s grandmother described Appellant as a “sweet boy” and a “good kid” who
became involved with the wrong people. She testified that Appellant is a good father
who is dearly missed by his daughter, and that it would be difficult for their family
to lose him.
Contrary to Appellant’s assertions, the record shows that Appellant’s trial
counsel investigated, pursued potential witnesses and mitigating evidence, and
presented such evidence on Appellant’s behalf during the punishment phase. It is
reasonable to conclude that, based on his investigation, counsel determined that the
best trial strategy would be to present mitigation evidence through the testimony of
Martinez and her grandparents. In light of his efforts, we cannot say that trial
counsel’s complained-of conduct (the alleged failure to investigate and to present
witnesses at trial) constitutes deficient performance. Kelly v. State, No. 11-19-
00331-CR, 2021 WL 5115492, at *4–5 (Tex. App.—Eastland Nov. 4, 2021, no pet.)
(mem. op., not designated for publication); Dobbins v. State, No. 11-18-00230-CR,
2020 WL 5085020, at *3 (Tex. App.—Eastland Aug. 27, 2020, pet. ref’d) (mem.
8
op., not designated for publication); Rodriguez v. State, No. 11-17-00214-CR, 2020
WL 1887716, at *6 (Tex. App.—Eastland Apr. 16, 2020, pet. ref’d) (mem. op., not
designated for publication); Thomas v. State, No. 11-14-00355-CR, 2016 WL
7649907, at *4 (Tex. App.—Eastland Dec. 22, 2016, pet. ref’d) (mem. op., not
designated for publication).
Nevertheless, even if trial counsel’s performance was found to be deficient,
and we do not hold that it was, a defendant is prejudiced by such deficiency only
when trial counsel fails to present any evidence of mitigating factors “to balance
against the aggravating factors presented by the State” because he did not perform a
meaningful investigation, develop mitigation evidence, or contact potential
mitigation witnesses. Shanklin, 190 S.W.3d at 165. Here, trial counsel did present
mitigating evidence from Appellant’s former girlfriend and her grandparents, which
provided the jury with the opportunity to balance the mitigating factors against the
aggravating factors in their determination of an appropriate punishment. The record
is devoid of any evidence indicating that there is a reasonable probability that the
outcome of the punishment phase and the sentences recommended by the jury would
have been less severe if Shipp had testified. Moreover, the punishment
recommended by the jury for the aggravated robbery offense (thirty-five years) is on
the lower end of the punishment range for a first-degree felony offense and fifteen
years less than the fifty-year sentence requested by the State.
Based on our review of the record, we conclude that Appellant failed to
establish that his trial counsel’s representation fell below an objective standard of
reasonableness or that the result of his punishment trial would have been different
but for trial counsel’s alleged deficiencies. As such, the trial court did not abuse its
discretion when it denied Appellant’s motion for new trial. Accordingly, we
overrule Appellant’s sole issue on appeal.
9
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
August 10, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
10