James Declouette v. State

Affirmed and Memorandum Opinion filed August 21, 2007

Affirmed and Memorandum Opinion filed August 21, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00725-CR

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JAMES DECLOUETTE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

 Harris County, Texas

Trial Court Cause No. 1053615

M E M O R A N D U M   O P I N I O N

James Declouette appeals a conviction for aggravated sexual assault of a child^[1] on the ground that he was denied effective assistance of counsel by his trial counsel=s failures to investigate the case, call witnesses to testify, and communicate with appellant.  We affirm.

                                                            Standard of Review

To prevail on an ineffective assistance claim, appellant must show that his attorney's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different.  Rompilla v. Beard, 545 U.S. 374, 380, 390 (2005); Garza v. State, 213 S.W.3d 338, 347‑48 (Tex. Crim. App. 2007).  Defense counsel has a duty to make either a reasonable investigation or a reasonable decision that a particular investigation is unnecessary.  Wiggins v. Smith, 539 U.S. 510, 521 (2003).  Therefore, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable to the extent that reasonable professional judgments support the limitations on investigation.  Id.  In reviewing the reasonableness of an investigation, we consider the evidence known to counsel and whether it would lead a reasonable attorney to investigate further.  Id. at 527.  A court may dispose of an ineffective assistance claim solely on a lack of prejudice without determining whether counsel=s performance was deficient.  Strickland v. Washington, 466 U.S. 668, 697 (1984).

                                                         Guilt/Innocence Phase

Appellant complains that his defense counsel was deficient during the guilt/innocence phase of trial by failing to: interview appellant in jail; visit the apartment in which the assault occurred (the Aapartment@); prepare Waurisa Shorter^[2] to testify; and contact possible exculpatory fact witnesses, including appellant=s brother and roommate, John Declouette, and appellant=s other roommate, Dwayne Shorter.

Although the record indicates that defense counsel did not interview or visit appellant in jail, counsel's affidavit states that he discussed the case thoroughly with appellant during their meetings at the court's holdover cell each time the case was on the court=s docket.^[3] Appellant=s brief cites no information he was unable to convey to counsel, no trial preparation matters they were unable to discuss, and no other basis to conclude that additional meetings with counsel would have benefitted his defense. Similarly, although appellant=s brief contends that his counsel=s failure to visit the apartment deprived his counsel of an opportunity to reasonably investigate and test the credibility of the complainant, it cites no facts that: (1) visiting the apartment would have revealed; (2) were not otherwise presented at trial; and (3) would have allowed a more effective crossBexamination of the complainant or otherwise benefitted his defense.  Likewise, appellant=s brief does not indicate what additional information his counsel could have learned from talking to Waurisa Shorter before trial or how her testimony could have otherwise been better prepared or presented at trial.

Appellant contends that Dwayne Shorter=s testimony that he never saw appellant alone with the complainant would have provided a second witness, in addition to Michael Hawkins, whom the complainant identified as having witnessed the assault, to controvert that evidence.  Appellant asserts that this would have been especially compelling in light of the evidence, mentioned in several affidavits, that the complainant's stepfather had abused the complainant.  Appellant also argues that John Declouette, who was also present at appellant=s house on the day of the offense, would have testified that: (1) he, too, never saw appellant alone with the complainant; and (2) the X‑Box game machine that the complainant said he was playing on in the bedroom immediately before the assault was actually in the living room.

However, there is nothing in the record to indicate that the complainant would testify that Dwayne Shorter had come into the room during the assault.  Rather, the complainant had stated in his videotaped statement that it was Hawkins who had come into the room during the assault, and the complainant=s mother testified at trial that this is also what the complainant had told her.  Counsel=s affidavit states that Dwayne Shorter=s name was never mentioned as a witness in the State=s file or the complainant=s video interview statement and that appellant never mentioned that Shorter was living with him at the time.  Upon first learning of Dwayne Shorter as a potential witness at trial, counsel decided against putting him on the stand because he did not know what he would testify.  Moreover, appellant does not show that he was harmed by counsel=s failure to call Dwayne Shorter to controvert the complainant=s contradictory testimony concerning Hawkins and Shorter because counsel exposed that inconsistency through other witnesses at trial.

Counsel=s second affidavit similarly states that the complainant did not mention the X-box until he testified, and appellant did not tell his counsel about the X-box until it was brought up at trial.  The affidavit further indicates that counsel wanted to treat it as a recent fabrication by the complainant.  Counsel=s first affidavit also states that appellant did not give him any contact information for anyone besides appellant=s mother, whom counsel contacted, and from whom counsel obtained contact information for appellant=s brother, Mike, and, Mike=s girlfriend.  Thus, the record does not show that the evidence known to counsel would have lead a reasonable attorney to investigate further in order to identify John Declouette as a possible witness or the X-box as a possible subject of impeachment. Accordingly, appellant has not demonstrated ineffective assistance of counsel during the guilt/innocence phase of the trial.

                                                             Punishment Phase

Appellant contends that his defense counsel was ineffective in failing to investigate and call various character witnesses to present mitigating evidence about appellant's hardworking, dependable, non‑violent nature.  However, counsel=s affidavits state that the State=s file reflected allegations of Aincidents@ with appellant=s ex-girlfriend and that appellant Ahad been sexually inappropriate with one of the daughters.@  Although everyone counsel interviewed in the case indicated that appellant was not the type to Ado this,@ counsel=s strategic decision not to put on additional mitigation evidence was made to prevent the State from eliciting testimony: (1) from police and doctors about sexual abusers and traits of sexually abused children; and (2) from each mitigation witness whether they had heard about the prior allegations of  abuse by appellant.

The risk faced by counsel in deciding whether to present additional mitigation witnesses is illustrated by the cross-examination testimony of appellant=s only mitigation witness, his mother. When asked whether she considered appellant a danger to children, and whether children needed to be protected from appellant, she admitted that she didn=t know.  When asked whether her son needed to be taught that it is wrong to have sex with a little boy, she replied AYes, I think so.@  Under these circumstances, even if counsel made a less-than-complete investigation of mitigation witnesses, appellant has not shown that a reasonable professional judgment would not support counsel=s limitation on that investigation and the presentation of further mitigation evidence.

Because appellant=s issue does not, therefore, demonstrate ineffective assistance of counsel during either the guilt/innocence or punishment phase of the trial, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed August 21, 2007.

Panel consists of Justices Yates, Edelman, and Seymore.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury convicted appellant and sentenced him to twenty-five years confinement.

^[2]           Her first name appears in the record as both Teresa and Waurisa.

^[3]           The record reflects that appellant appeared in court on at least seven occasions.