Deshun Thomas v. State

Affirmed and Memorandum Opinion filed March 6, 2008

Affirmed and Memorandum Opinion filed March 6, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00540-CR

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DESHUN THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 786932

M E M O R A N D U M  O P I N I O N

Appellant Deshun Thomas challenges his conviction for aggravated robbery, arguing he was denied effective assistance of counsel.  We affirm.

                        I.  Factual and Procedural Background

On the night of April 7, 1998, the complainant, Charles McCulloch, then a salesperson at a local car dealership, sought a woman by the name of Elena Rodriguez in order to retake a car that the dealership had loaned her.  McCulloch and two of his employees located the car at Rodriguez=s apartment complex.  McCulloch confirmed that the car belonged to the dealership, and he turned to one of the employees and instructed her to drive it back to the dealership.  As McCulloch turned and began walking back to his own car, he was accosted by an individual brandishing a handgun and standing some ten to fifteen feet away.  The individual, later identified by McCulloch as appellant, said, AGive me your watch.@  McCulloch refused, and was proceeding back to his vehicle when the gunman shot him.

In a statement to police, Rodriguez denied knowing who shot McCulloch.  Rodriguez=s co-worker, who was with her on the evening of the shooting, confirmed that she also did not know who shot McCulloch.  Three months later, Rodriguez recanted her prior statement to police and provided a new statement naming appellant as the gunman.  Around the same time, the co-worker also met with police and stated that she and Rodriguez met with appellant in the early hours of April 8 and that appellant admitted shooting McCulloch.  Based on this new information, the police procured and executed an arrest warrant for appellant.  After appellant=s arrest, police searched appellant=s room in the home he shared with his mother and found a handgun later confirmed to be the one used to shoot McCulloch.

Appellant was convicted of aggravated robbery, but on appeal, this court reversed his conviction and remanded this case to the trial court for a new trial.  See Thomas v. State, No. 14-99-00949-CV, 2000 WL 1785110, at *8 (Tex. App.CHouston [14th Dist.] Dec. 7, 2000, pet. ref=d) (not designated for publication).  During the retrial, at the end of the guilt-innocence phase, appellant=s counsel addressed the jury in his closing argument, stating:

. . .

I can assure you I am a long way from being naive.  And I=m certainly not a green horn.  And so, as I viewed this evidence, it seems really strong to me that this young man is guilty, this person I=m representing is guilty.  But before you can be warranted in finding him guilty, you have to believe what Elena Rodriguez says because you can=t find him guilty based on what Mr. Collesano said, nor can you find him guilty on the lack of identification by Mr. McCullough [sic].

And we all know that Ms. Flores got like a four-second look, a side view, of this person that fired the shot into Mr. McCullough [sic].  So all I=m saying to you is I would like for you to look at it.  And the way this case stands today, the evidence is pretty persuasive.

I have been doing this a very long time, more than 30 years, longer than some of you people have been alive.  Like I said, I=m a practical person and I=m not going to stand up here and try to divert you from what you think is the right thing to do.  All I ask you to do is consider all of this evidence and if you are convinced beyond a reasonable doubt this young man is guilty, then you are required to find him guilty.

And if you have a reasonable doubt, wherever it may come from in this evidence, you are required to have a reasonable doubt and say by your verdict not guilty however.  Normally I could be up here for an hour in some cases, but there is not much to say because the case was short.  And like I said, I=m convinced that the evidence is pretty powerful.  If I were to argue to you that there is a great room for doubt, you would probably think I=m a moran [sic].  So, I have got to be honest about the way I feel and I have got to be honest with this young man I represent.  The way this case stands, there is a substantial amount of evidence saying he=s guilty. 

I would like you to look at all of the evidence, take a look at it, dissect it a little bit.  If you reach a verdict that says he=s guilty, that=s the way it is.  I appreciate it.  Thank you.^[1]

At the punishment phase of the retrial, appellant=s trial counsel made the following closing statement:

. . .

Ladies and gentlemen, I know you remember I practically consented to a guilty verdict in this case, because I thought the evidence was overwhelming based on the many years of experience of trying cases.  I can assure you I am not a magician.  I cannot generate facts in cases when those facts are not available.  I can only defend this case the best way that I can.

All of the evidenceBand I would be a fool if I suggested otherwise, and I=m notBis compelling that this young man deserves a pretty substantial sentence.  I=m not talking about of [sic] sentence of 15 years.  All of the evidence is compelling.  A young man lost his life, destroyed his mother practically.  And so, that has to be taken into consideration.  I want you to do that.  I could go over all his prior convictions, but I=m not going to do that.  You are well aware of that.  You are well aware of the facts in this case.  I can assure you I=m a fairly wordy individual, but I know I can=t deter you from the things you ought to do in this case.  And in this case, I=m convinced, based on all of the facts, he deserves a substantial sentence.  That=s just life.  Part of life.

All I can do is ask you to consider all of the facts and come up with the sentence.  I certainly can=t quarrel with you, whatever you do.  Thank you.^[2]

On retrial, appellant was again convicted of aggravated robbery, and the jury assessed punishment at seventy-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.

II.  Issue and Analysis

Appellant asserts that because of his trial counsel=s remarks on retrial during the guilt-innocence and the punishment phases, he received ineffective assistance of counsel.  Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, ' 10; see Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  This standard applies to claims of ineffective assistance of counsel in both the guilt-innocence phase and the punishment phase in non-capital trials.  Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).  Appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant=s claim, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy, unless that presumption is rebutted.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Thompson, 9 S.W.3d at 814.  Nevertheless, the standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  When reviewing a claim of ineffective assistance, we look to the totality of the representation and not to isolated instances of error or to only a portion of the trial, to determine that he was denied a fair trial.  Thompson, 9 S.W.3d at 813; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

A claim for ineffective assistance of counsel must be firmly supported in the record.  Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002).  When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is difficult to show that trial counsel=s performance was deficient.  See id. at 833.  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Appellant argues that through his closing arguments in the guilt-innocence phase and in the punishment phase, appellant=s counsel essentially joined forces with the prosecutor.  In assessing an ineffective-assistance-of-counsel claim, we presume closing arguments are based on reasonable trial strategy.  See Flemming v. State, 949 S.W.2d 876, 881 (Tex. App.CHouston [14th Dist.] 1997, no writ).  Matters of trial strategy will be reviewed only if an attorney=s actions are without any plausible basis.  See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (noting that appellate courts will commonly assume strategic motivation if any can possibly be imagined).

In his closing argument at the guilt-innocence phase, appellant=s trial counsel emphasized his own thirty years= experience as defense counsel in assessing similar evidence and told the jury that in the case they were to decide the evidence is Areally strong@ that appellant was guilty.  He indicated that he was convinced the evidence was Apretty powerful@ and that in assessing evidence, only a Amoron@ would argue for Agreat room for doubt.@  Near the end of his closing argument, appellant=s counsel offered, AThe way this case stands, there is a substantial amount of evidence saying he=s guilty.@  It is conceivable that trial counsel=s argument conceding guilt in the guilt-innocence phase could have been calculated convince the jury of his candor and trustworthiness, perhaps in an attempt to mitigate punishment in the punishment phase, but that is not the case presented by our record.  See Flemming, 949 S.W.2d at 881.  At the punishment phase, appellant=s trial counsel reminded the jury that in the guilt-innocence phase, he Apractically consented to a guilty verdict@ based on the overwhelming evidence given his Amany years of experience.@  Moreover, he argued that Aall of the evidence . . . is compelling that [appellant] deserves a substantial sentence.@  Appellant=s counsel specifically told the jury that he did not consider fifteen years= confinement, the minimum sentence in this case, to be substantial.  In his concluding remarks, ostensibly made on appellant=s behalf, appellant=s counsel reiterated that appellant deserved a Asubstantial sentence.@  The jury found appellant guilty and assessed a sentence of seventy-five years= confinement.

Individually, trial counsel=s conduct during each phase of trial may not alone sustain an ineffective-assistance-of-counsel claim.^[3] See Thompson, 9 S.W.3d at 813 (A[A]n appellate court should be especially hesitant to declare counsel ineffective based on a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel=s actions.@).  However, given trial counsel=s closing argument in the punishment phase, in which he made specific reference to trial counsel=s concession of appellant=s guilt in closing argument in the punishment phase, combined with counsel=s references to the overwhelmingly powerful evidence at the guilt-innocence phase, the totality of the representation amounts to conduct so outrageous that it falls well-below professional standards.  See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833; Garcia, 57 S.W.3d at 440; see, e.g., Welborn, 785 S.W.2d at 396 (concluding that although no one instance alone is sufficient proof for ineffective assistance of counsel claim, counsel=s performance taken as a whole compels such a holding).  Appellant=s trial counsel emphasized the strength of the evidence against appellant and affirmatively argued both for finding appellant guilty and for assessing a substantial sentence.  Under the circumstances of this case, no plausible basis exists and no strategic motivation could explain why trial counsel fashioned his arguments as he did.  See Garcia, 57 S.W.3d at 440; Flemming, 949 S.W.2d at 881. Appellant has rebutted the presumption that counsel=s conduct was reasonably professional and motivated by sound trial strategy because counsel=s closing arguments amount to conduct Aso outrageous that no competent attorney would have engaged in it.@  See Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 814.  Appellant has satisfied the first prong in Strickland by showing his trial counsel=s conduct was deficient such that it fell below the standard of professional norms.  See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833.

To satisfy the second prong of Strickland, appellant must affirmatively prove there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 693, 104 S. Ct. at 2067B69; McFarland, 928 S.W.2d at 500.  A reasonable probability is one sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  It is not enough for an appellant to show that the errors, if any, had some conceivable effect on the outcome of the proceeding.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).  This stringent burden requires that appellant point to objective facts in the record to support any lack of confidence in the conviction, i.e. proof of prejudice.  Bone, 77 S.W.3d at 837. 

In this case, appellant has waived error as to Strickland=s second prong by failing to adequately brief it on appeal.  To present an issue for appellate review, the Abrief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  With regard to Strickland=s second prong, appellant has not presented any facts within the record to support a reasonable probability that the result of the proceeding would have been different but for his trial counsel=s deficient performance.  Appellant has not applied any governing legal principles to the facts of this case to prove prejudice from his trial counsel=s conduct.  See King v. State, 17 S.W.3d 7, 22 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  This is especially true when the evidence tends to support a guilty verdict and when the range of punishment was between fifteen and ninety-nine years or life.  See Bone, 77 S.W.3d at 836 (requiring evidence in the record that probably would have led to a Anot guilty@ verdict or a lesser punishment); McFarland, 928 S.W.2d at 500 (determining reasonable probability by reviewing the totality of the evidence before the jury).  Appellant bears the burden of proving his claims by a preponderance of the evidence, and he has failed to meet this burden.  See Jackson, 973 S.W.2d at 956.  In his brief appellant argues only that he Ahad no meaningful assistance of counsel at his side,@ and that such conduct in a trial cannot amount to a fair trial.  Conclusory statements which contain no citations to authority present nothing for appellate review.  Id.; see also Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992).  Failure to make the required showing of sufficient prejudice defeats an ineffectiveness claim.  Strickland, 466 U.S. at 700, 104 S. Ct. at 2071; McFarland, 928 S.W.2d at 500. Because appellant did not affirmatively prove prejudice in the second prong, he cannot prevail.  Accordingly, we overrule appellant=s sole issue on appeal and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2008.

Panel consists of Chief Justice Hedges and Justices Anderson and Frost.

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

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^[1]  Emphasis added.

^[2]  Emphasis added.

^[3]  This is especially true when in his closing argument in the guilt-innocence phase, counsel raised credibility issues with several of the State=s witnesses and also made reference to the lack of a definitive identification of appellant by the complainant and the eyewitnesses. See Thompson, 9 S.W.3d at 813 (reviewing whether an ineffective-assistance-of-counsel claim meets the Strickland standard by reviewing the Atotality of the representation@ rather than isolated acts or omissions). Additionally, we recognize that the test for determining an ineffective-assistance-of-counsel claim is applied at the time of trial and not in hindsight.  Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).