Snare, Anthony Dean v. State

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Qlcurt at Appeals
mutf Etsirtri of ®exns at lallas
JUDGMENT
ANTHONY DEAN SNARE, Appellant Appeal from the Criminal District Court
No. 2 of Dallas County, Texas. (Tr.Ct.No.
No. 05-95-01268-CR F94-60039-TI).
Opinion delivered by Justice Chapman,
THE STATE OF TEXAS, Appellee Justices Morris and Hankinson
participating.
Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered February 28, 1997.
RON CHAPMAN
JUSTICE
AFFIRM and Opinion Filed February 28, 1997
In The
(Uimrt of Appeals
iTtftlr Itsirtrt of Gkxas at lallas
No. 05-95-01268-CR
ANTHONY DEAN SNARE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F94-60039-TI
OPINION
Before Justices Chapman, Morris, and Hankinson
Opinion By Justice Chapman
Appellant appeals his jury conviction for aggravated robbery. The jury assessed
punishment, enhanced by two prior felony convictions, at fifty years' confinement. In his
sole point of error, appellant contends he received ineffective assistance of counsel. We
affirm.
Appellant contends his trial counsel was ineffective and that counsel's ineffectiveness
V
caused the jury to assess a greater sentence. Appellant complains of errors during voir dire
and errors during punishment.
The proper standard of review to measure counsel's ineffectiveness during voir dire
is that set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Chambers v. State, 903
S.W.2d 21, 36 (Tex. Crim. App. 1995). Under this standard, an appellant must first
establish that his counsel's representation fell below an objective standard of reasonableness.
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez, 726 S.W.2d 53,
55 (Tex. Crim. App. 1986). The appellant must then show a reasonable probability exists
that, but for counsel's errors, the result of the proceeding would have been different.
Jackson, 877 S.W.2d at 771; Hernandez, 726 S.W.2d at 55.
The proper standard to review counsel's performance during punishment, however,
is the standard set forth in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). See Ex
parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990). We determine whether counsel
was reasonably likely to render effective assistance and whether counsel actually rendered
reasonably effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992).
Several considerations are applicable to both standards. Under either standard, we
view the totality of counsel's representation and do not judge counsel's performance in
hindsight. Exparte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Davis v. State, 831
S.W.2d 839, 843 (Tex. App.--Dallas 1992, pet. ref'd); Ybarra v. State, 890 S.W.2d 98, 111
(Tex. App.--San Antonio 1994, pet. ref'd). Both standards require the appellant to prove
ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694
S.W.2d 528, 531 (Tex. Crim. App. 1985). Further, the record must support a claim of
ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984),
cert, denied, 474 U.S. 865 (1985). Finally, we are not permitted to inquire into trial strategy
unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v.
State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d
390, 391 (Tex. App.-Dallas 1994, no pet.).
Appellant pleaded not guilty to aggravated robbery. After hearing evidence on guilt-
innocence, the juryfound appellant guilty of the offense. Appellant testified at punishment
and admitted he committed the offense. The jury assessed punishment at fifty years'
confinement.
Appellant contends counsel was ineffective during voir dire because counsel
questioned the venire on issues concerning guilt-innocence. Specifically, counsel asked
questions concerning the credibility of police officers and the burden of proof. According
to appellant, these questions would alienate the jury because he was "obviously guilty" and
would admit he was guilty in the punishment phase. Appellant asks that we judge counsel's
performance in hindsight, which we are not permitted to do. See Felton, 815 S.W.2d at 735.
Further, appellant chose to plead not guilty and have the jury determine guilt-innocence.
We cannot, therefore, conclude counsel was ineffective for questioning the venire on issues
concerning guilt-innocence.
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Appellant next complains that his trial attorney did not question the venire on
punishment issues. The trial court did, however, question the venire concerning theirability
to consider the full range of punishment. Thereafter, the trial court granted five of counsel's
strikes for cause against venirepersons who could not consider the minimum punishment.
Appellant nevertheless maintains counsel should have argued issues which the venire might
consider in mitigation of punishment. The record, however, is silent with respect to
counsel's reasons for not questioning the venire on mitigation issues. See Jackson v. State,
877 S.W.2d at 771. We cannot conclude there is no plausible basis for counsel's actions.1
See Weeks, 894 S.W.2d at 392.
Appellant also asserts that reasonably effectivecounselwould have pleaded him guilty
before the jury. However, the decision to plead guilty or not guilty is the personal decision
of the accused. Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985); Ramer v.
State, 714 S.W.2d 44, 46 (Tex. App.-Dallas, pet. ref'd). Appellant has neither asserted,
nor shown, that counsel advised him to plead not guilty.
Finally, appellant contends counsel was ineffective for failing to investigate the facts
and failing to interview witnesses. He asserts counsel failed to discover appellant had a drug
problem and a difficult childhood. The record is silent with respect to counsel's preparation
for trial. The record likewise does not show counsel was not aware that appellant used
Counsel may, for example, have decided not to question the venire on mitigation issues to avoid any suggestion that counsel
believed his client was guilty.
-4-
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drugs and had a difficult childhood. Evidence was, in fact, presented at punishment showing
that appellant's fatherwas "tyrannical" and that appellant used drugs. Although counsel did
not focus on this evidence, counsel's punishment argument shows it was her strategy to stress
that appellant had admitted his guilt and did not make excuses for his actions. We conclude
appellant has not met his burden to show counsel was ineffective. See Runnels v. State, 860
S.W.2d 545, 547 (Tex. App.-Beaumont 1993, pet. ref'd). Accordingly, we overrule
appellant's sole point of error and affirm the trial court's judgment.
RON CHAPMAN
JUSTICE
Do Not Publish
Tex. R. App. P. 90
951268F.U05
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Chief Justice
Linda Thomas David Pagan
Justices business administrator
Sue Lagarde (214) 712-3434
Ed Kinkeade
John Ovard
Frances Maloney Lisa Rombok
Ron Chapman (£aurt of Appeals clerk of the court
Joseph B. Morris (214) 712-3450
Mark Whittington Wxftlj Itstrtrt of Okxas at Satlas
Tom James George L. Allen Sr. Courts Building
Carolyn Wright Facsimile
600 Commerce Street
Deborah G. Hankinson (214) 745-1083
Dallas, Texas 75202-4658
Jim Moseley
David Bridges
(214) 712-3400
May 22,1997
R. D. Rucker
Attorney at Law
P.O. Box 222167
Dallas, TX 75222-2167
April E. Smith
Assistant District Attorney
Frank Crowley Courts Building
133 North Industrial Blvd., LB-19
Dallas, TX 75207
RE: Court of Appeals Number: 05-95-01268-CR
Trial Court Case Number: F94-60039-TI
Style: Snare, Anthony Dean
v.
The State of Texas
Dear Counsel:
Pursuant to Rule 86 of the Texas Rules of Appellate Procedure, this Court has this day issued a
Mandate in accordance with the Judgment and delivered it to the Clerk of the Trial Court.
Respectfully Yours,
Lisa Rombok
Clerk of the Court
Stephanie Hughes