DocketNumber： 03-99-00048-CR
Filed Date： 9/10/1999
Status： Precedential
Modified Date： 9/5/2015
Two weeks after sentencing, appellant's counsel filed a "motion for rehearing on court's judgment of guilt and punishment." The motion stated that "[m]aterial mitigating evidence has been brought to the attention of defense counsel that was not known by defense counsel" at the time of the guilty-plea proceeding. The motion was considered and heard by the district court as a motion for new trial. See Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 1999). Following a hearing at which appellant testified, the court overruled the motion.
Appellant's notice of appeal states he has the district court's permission to appeal. See Tex. R. App. P. 25.2(b)(3)(C). By a single point of error, appellant contends his trial counsel was ineffective in two respects: he did not fully investigate the facts of the case and he refused to permit appellant to testify. We will overrule this point and affirm. (1)
Appellant testified at the new trial hearing that the facts recited in the presentence report were inaccurate or incomplete in various respects. Appellant first stated that he made his objections to the report known to defense counsel before trial, but later acknowledged that he did not discuss some of these matters with counsel until after he was sentenced. With respect to his testifying at trial, appellant said his lawyer told him, "We weren't going to take that route," and that he chose to follow this advice. He later regretted this choice.
Appellant has the burden of proving ineffective assistance of counsel. Bohnet v. State, 938 S.W.2d 532, 536 (Tex. App.--Austin 1997, pet. ref'd). He must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced his defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); see also Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing appellant's claim, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
There is no evidence as to the scope of defense counsel's pretrial investigation. The testimony at the new-trial hearing shows only that appellant and his attorney reviewed the presentence report before trial and discussed appellant's disagreements with the factual recital. If counsel was not fully aware of appellant's version of the relevant events, it was only because appellant, by his own admission, did not tell his attorney certain facts until after trial.
Appellant asserts that defense counsel violated his ethical responsibilities by refusing to permit him to testify at trial. See Tex. Disciplinary R. Prof. Conduct 1.02(a)(3) (State Bar Rules art. X, § 9) (lawyer shall abide by client's decision whether to testify). Again, there is no evidence to support this assertion. Appellant testified that he followed his attorney's advice not to testify. Counsel's advice did not violate disciplinary rule 1.02, and appellant has not shown that this advice was outside the broad range of reasonable professional assistance in the context of this case.
Appellant has not overcome the presumption of effectiveness afforded trial counsel's actions and decisions. The point of error is overruled and the judgment of conviction is affirmed.
Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: September 10, 1999
Do Not Publish
1. The State urges that appellant failed to preserve this contention for review. See Tex. R.
App. P. 33.1. Ineffective-assistance claims are rarely successful when raised for the first time
on appeal. See Jackson v. State, 877 S.W.2d 768, 772 (Baird, J., concurring). But we are aware
of no authority holding that such a claim must be raised in the trial court in order to preserve it
for appeal, and the State cites none. We believe the contention is properly before us.
ilty-plea proceeding. The motion was considered and heard by the district court as a motion for new trial. See Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 1999). Following a hearing at which appellant testified, the court overruled the motion.
Appellant's notice of appeal states he has the district court's permission to appeal. See Tex. R. App. P. 25.2(b)(3)(C). By a single point of error, appellant contends his trial counsel was ineffective in two respects: he did not fully investigate the facts of the case and he refused to permit appellant to testify. We will overrule this point and affirm. (1)
Appellant testified at the new trial hearing that the facts recited in the presentence report were inaccurate or incomplete in various respects. Appellant first stated that he made his objections to the report known to defense counsel before trial, but later acknowledged that he did not discuss some of these matters with counsel until after he was sentenced. With respect to his testifying at trial, appellant said his lawyer told him, "We weren't going to take that route," and that he chose to follow this advice. He later regretted this choice.
Appellant has the burden of proving ineffective assistance of counsel. Bohnet v. State, 938 S.W.2d 532, 536 (Tex. App.--Austin 1997, pet. ref'd). He must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced his defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); see also Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing appellant's claim, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
There is no evidence as to the scope of defense counsel's pretrial investigation. The testimony at the new-trial hearing shows only that appellant and his attorney reviewed the presentence report before trial and discussed appellant's disagreements with the factual recital. If counsel was not fully aware of appellant's version of the relevant events, it was only because appellant, by his own admission, did not tell his attorney certain facts un