Brown, Roy Charles v. State

Affirmed and Memorandum Opinion filed July 1, 2004

Affirmed and Memorandum Opinion filed July 1, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00579-CR

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ROY CHARLES BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 923,104

M E M O R A N D U M  O P I N I O N

Appellant Roy Charles Brown was convicted by a jury of possession of a controlled substance, and after he pleaded true to two enhancements, the jury assessed punishment at life imprisonment.  In his sole issue on appeal, appellant contends he was denied effective assistance of counsel during closing arguments in the punishment phase of trial.  We affirm. 

Factual and Procedural Background

Appellant was indicted for possession of 1.2 grams of cocaine he attempted to discard while being arrested during an undercover narcotics operation.  The jury found appellant guilty of possession of a controlled substance.  During punishment, the State=s only additional evidence consisted of appellant=s stipulation that he was previously convicted of ten other offenses.  The State then recited each offense separately.  Thereafter, the State waived its right to open closing argument, and appellant=s counsel proceeded with her closing argument. Appellant=s counsel=s closing argument, in its entirety, is as follows:

Ladies and gentlemen you=ve decided that Mr. Brown is guilty.  I respect that decision.  I don=t agree with it but I respect it.  But now you have even an [sic] harder choice.  You=ve got to decide what punishment to assess on Mr. Brown and to me that seems like even a harder job than guilt/innocence.  And I=d like to tell you we=re talking about a little bit more than a gram.  A little bit more than B this is what Mr. Brown had on his person that day. 

I feel like the punishment should be appropriate for the crime.  This is what we=re talking about ladies and gentlemen.  This is what he had and I=m not saying Mr. Brown has led an exemplary life.  He=s been in trouble, has a criminal history and you know about the criminal history but still one gram, 1.2 grams, little bit more than what=s inside this packet^[1] so when you=re back there and you=re thinking about what kind of punishment you should assess think about what the crime is. 

Thank you.

After the State delivered its closing argument, the jury deliberated and assessed punishment at life imprisonment, the maximum penalty.  Appellant filed a motion for new trial, but did not allege ineffective assistance of counsel, and there was no evidentiary hearing on the motion. Appellant now contends, for the first time on appeal, he was denied effective assistance of counsel because his trial counsel=s brief closing argument was inadequate.

Discussion

The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, appellant must prove counsel=s performance was deficient, i.e., it fell below an objective standard of reasonableness.  Id.; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  Second, appellant must prove the deficient performance was so serious that it prejudiced his defense, i.e., there is a reasonable probability that but for counsel=s errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833.  Appellant must prove both prongs by a preponderance of the evidence to prevail on his claim of ineffective assistance of counsel.  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Appellant must identify the specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove the acts or omissions fell below the professional norm for reasonableness.  Strickland, 466 U.S. at 690; Garcia v. State, 112 S.W.3d 839, 845 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  The alleged ineffectiveness must be firmly founded in the record.  Bone, 77 S.W.3d at 835.  If appellant fails to satisfy either prong of the test, we do not need to consider the remaining prong.  Strickland, 466 U.S. at 687. 

Judicial scrutiny of counsel=s performance must be highly deferential, and we indulge a strong presumption that counsel was effective.  Strickland, 466 U.S. at 689.  We presume counsel=s actions were reasonably professional and motivated by sound trial strategy.  Id. Appellant must overcome this presumption by a preponderance of the evidence by illustrating why trial counsel did what she did.  Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d).  A fair assessment of attorney performance requires making every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel=s perspective at the time of trial.  Strickland, 466 U.S. at 689.  When evaluating an allegation of ineffective assistance, an appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  The fact that another attorney may have acted in a different manner will not be sufficient to prove ineffective assistance, and an error in trial strategy will be considered inadequate only if counsel=s actions lack any plausible basis.  Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.CSan Antonio 2002, no pet.).

Generally, the record on direct appeal is not sufficient to establish a claim of ineffective assistance of counsel because a silent record cannot rebut the presumption that counsel=s performance was based on sound or reasonable trial strategy. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  A reviewing court should not second guess trial counsel=s strategy in hindsight; thus, an affidavit supporting a motion for new trial can be critical to the success of a claim for ineffective assistance. Storr v. State, 126 S.W.3d 647, 651 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In the absence of a record explaining trial counsel=s actions, a reviewing court most likely cannot conclude trial counsel=s performance fell below an objective standard of reasonableness unless the 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); Storr, 126 S.W.3d at 650B51. 

In this case, appellant contends his trial counsel should have argued more vigorously on his behalf.  Appellant first contends counsel should have been prepared to rebut the State=s inference that he was beyond rehabilitation.  Appellant also argues his counsel should have explained that the range of punishment was enhanced and thus much greater than the range applicable to the actual offense for which appellant was on trial. Appellant set forth several examples of alternative arguments trial counsel could have made, however, the fact that appellate counsel would have made different arguments at trial is not sufficient to overcome the presumption that counsel is competent.  Dickerson, 87 S.W.3d at 637.

Appellant relies heavily on an unpublished opinion from this court, holding trial counsel=s performance during closing argument of the guilt/innocence phase was deficient.  See Naranjo v. State, No. 14-99-01227-CR, 2001 WL 931380, at *10 (Tex. App.CHouston [14th Dist.] Aug. 16, 2001, pet. ref=d) (not designated for publication).  In Naranjo, we recognized that decisions relating to closing argument are usually matters of trial strategy, but there could be no plausible strategic reason for giving an argument that is Aaimless, incoherent, devoid of substance, and without any apparent purpose.@  Id. Thus, we concluded trial counsel=s final argument was wholly inadequate and fell below the objective standards of professional conduct.  Id.  

Here, although closing argument was brief, there is no similarity to the closing argument in Naranjo.  Appellant contends trial counsel should have anticipated and countered the State=s argumentCan argument given after appellant=s counsel=s argumentCby assuming the substance and also rebutting the inferences that were contained in the State=s argument.  Appellant criticizes counsel for not delving into his criminal history and explaining that the prior crimes were non-violent.  However, we will deem counsel ineffective only when there can be no plausible reason for her actions.  Dickerson, 87 S.W.3d at 637.  It is possible counsel did not want to emphasize appellant=s lengthy list of prior criminal convictions.  Trial counsel instead chose to recognize appellant had a criminal history, but argued that regardless of the history, the punishment should be proportional to the actual crime committed, here possession of a small amount of cocaine.

Appellant also contends counsel erred in failing to explain the severity of the punishment range in this case when compared to punishment ranges for the same or similar crimes without enhancement.  While counsel did not specifically delineate the various ranges of punishment for similar crimes, she did emphasize the small amount of cocaine that was in appellant=s possession.  The record is silent regarding trial counsel=s reasons for not delving into other punishment ranges; thus, without a sufficient record, appellant has failed to rebut the presumption trial counsel=s actions were based on a reasonable trial strategy.  Greeno v. State, 46 S.W.3d 409, 416 (Tex. App.CHouston [14th Dist.] 2001, no pet.).   

Because there was no motion for new trial raising the grounds of ineffective assistance of counsel, there is no evidence in the record about why trial counsel decided to deliver the closing argument she did.  Appellant proffers nothing to overcome the strong presumption that counsel=s decision was reasonably professional and motivated by sound trial strategy from her perspective at the time of trial. Accordingly, we hold appellant has failed to prove by a preponderance of the evidence trial counsel=s performance was deficient. 

Accordingly, we overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 1, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  According to appellant, trial counsel displayed a Sweet-n-Low type packet at this point during closing argument.