Benjamin Franklin Forsyth A/K/A Benjamin Franklin Forsyth, Jr. v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00321-CR
BENJAMIN FRANKLIN FORSYTH APPELLANT
A/K/A BENJAMIN FRANKLIN
FORSYTH, JR.
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In four issues, Appellant Benjamin Franklin Forsyth appeals his convictions
for possession of a controlled substance and unlawful possession of a firearm by
a felon. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Based on an informant’s tip, Hood County peace officers executed a
search warrant to search Deborah Hudgins’s two-story house for the presence of
methamphetamine. At the time of the search, Forsyth was renting the upstairs
portion of the house where the officers found .22 caliber ammunition and drug
paraphernalia. In a downstairs closet, officers found .22 caliber shells inside of a
.22 caliber rifle. The State brought two charges against Forsyth, who pleaded
guilty to possession of less than one gram of methamphetamine but not guilty to
possession of a firearm by a felon.
Forsyth’s trial counsel filed a motion for continuance because Hudgins,
“the sole and essential defense witness,” would be unavailable for the original
trial setting. The motion stated that Hudgins expressed a willingness to testify
without the necessity of a subpoena. The trial court granted this motion and
reset the case for July. Knowing that the trial had been reset for July 7, 2011, but
not knowing what time the trial was scheduled to begin, Hudgins assumed that
the trial would begin at 9:00 a.m. and arrived at the courthouse at 8:30 a.m.
However, courthouse security officers told her that there were no felony trials that
morning,2 and so Hudgins left to take her grandchildren swimming.
The State’s witnesses, Hood County peace officers, were the only
witnesses to testify at trial. The jury found Forsyth guilty of both charges and
2
Hudgins also testified that the officers told her that “there wasn’t any court
that day.”
2
assessed a $10,000 fine for each conviction as well as concurrent sentences of
two and ten years’ confinement for the drug and firearm convictions, respectively.
Forsyth filed a motion for new trial alleging, in part, that his trial counsel had been
ineffective for failing to subpoena Hudgins. To the motion, Forsyth attached an
affidavit, not from his trial counsel but from his appellate counsel. In this affidavit,
appellate counsel averred that trial counsel had told Hudgins to appear, that
Hudgins arrived at the courthouse, and that she was turned away by courthouse
security officers.
At the hearing on the motion for new trial, Hudgins testified that she had
kept the rifle, which belonged to her nephew, hidden in her downstairs closet and
that she did not believe that Forsyth knew about the rifle because he was only
permitted to enter the lower portion of the house to do laundry. Forsyth also
called his parole officer, Darren Olsovsky, who testified that he had visited
Forsyth’s residence several times but had never entered the downstairs portion
because the upstairs portion had a separate entrance. The trial court denied the
motion for new trial, and this appeal followed.
III. Due Process and Rule 21.3(e)
In his third issue, Forsyth claims that the trial court abused its discretion by
denying his motion for new trial because he was denied federal due process
when courthouse security officers turned Hudgins away from the courthouse.
Because it is unclear from his argument whether he is claiming a due process
violation or claiming that the trial court abused its discretion by failing to grant his
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motion for new trial under rule 21.3(e), we will address both. See Tex. R. App. P.
21.3(e).
The proper procedural due process analysis is two-tiered. Rodriguez v.
State, 21 S.W.3d 562, 568 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (op.
on reh’g) (citing Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim. App.
1995)), cert. denied, 532 U.S. 995 (2001). First, the reviewing court must decide
whether a protected liberty or property interest exists. Id. If this interest exists,
the court must ask the second question, which is whether sufficient procedural
safeguards ensure that there is no arbitrary interference with the interest. Id.
Here, Forsyth does not address the second tier of this inquiry; he does not
claim that his subpoena power or his right to request a continuance was in any
way abridged. See id. Indeed, Forsyth admits that his trial counsel chose not to
subpoena Hudgins, and there is no evidence in the record that Forsyth tried to
move for a continuance after Hudgins failed to appear. See id. (“The fact that
appellant’s reliance [on a witness’s promise to appear] proved to be misplaced
does not constitute interference with his right to compulsory process.”). In any
event, Forsyth’s notice and opportunity to be heard at the hearing on his motion
for new trial was a sufficient procedural safeguard to protect his liberty interest.
See id. (noting that deprivation of a protected interest requires notice and an
opportunity to be heard and determining that hearings on appellant’s motion for
continuance and motion for new trial provided sufficient safeguards).
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Further, to the extent that Forsyth claims that the trial court abused its
discretion by denying his motion for new trial in violation of rule 21.3(e), the
granting or denying of a motion for new trial lies within the trial court’s discretion.
Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). When reviewing a trial
court’s denial of a motion for new trial, we do not substitute our judgment for that
of the trial court; rather, we consider whether its decision was arbitrary or
unreasonable. Id.
Rule 21.3(e) requires, in part, that a motion for new trial must be granted
“when a material defense witness has been kept from the court by force, threats,
or fraud.” Tex. R. App. P. 21.3(e). However, Forsyth does not argue on appeal,
nor did he argue in his motion for new trial, that anyone kept Hudgins away from
the court by force, threats, or fraud, and the record does not support such a
claim. To the contrary, although Forsyth has maintained that courthouse security
officers gave Hudgins misinformation, he does not claim, and there is no
evidence to show, that they did so fraudulently. Because Forsyth failed to
establish entitlement to relief under rule 21.3(e), the trial court did not abuse its
discretion by denying Forsyth’s motion for new trial, we overrule his third issue.
See Rodriguez, 21 S.W.3d at 567; Lewis, 911 S.W.2d at 7.
Forsyth’s fourth issue is the same as his third except that he argues that
he was deprived of due course of law under the Texas constitution. However,
Forsyth only raised his constitutional challenges below in his motion for new trial,
and in that motion, he failed to argue that the state due course of law provision
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provides greater protection that the federal due process clause. Therefore, he
has failed to preserve this complaint for appellate review. See Pena v. State,
285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that by failing at trial to
distinguish the rights and protections afforded under the Texas due course of law
provision from those provided under the Fourteenth Amendment, appellant failed
to preserve for appellate review his complaint that the due course of law
provision provides greater protection). Accordingly, we overrule Forsyth’s fourth
issue.
IV. Ineffective Assistance of Counsel
In his first issue, Forsyth claims that the trial court abused its discretion by
denying his motion for new trial because his trial counsel was ineffective under
the United States Constitution for failing to subpoena Forsyth’s sole witness.
Forsyth’s second issue is the same except that he claims that his trial counsel
was ineffective under the Texas constitution. Because Texas’s right to counsel
provision is no more protective than its federal counterpart, Hernandez v. State,
988 S.W.2d 770, 772 (Tex. Crim. App. 1999), we will address his first and
second issues together.
A. Standard of Review
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
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been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look 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 issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
position on direct appeal to fairly evaluate the merits of an ineffective assistance
claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.” Salinas, 163
S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption
of reasonable professional assistance, “any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
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upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
B. Analysis
Forsyth argues that trial counsel was ineffective for failing to subpoena and
call3 Hudgins because Hudgins was available and her testimony would have
benefitted Forsyth. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)
(holding that failure to call a particular witness will not be considered deficient
performance absent a showing that the witness was available and that the
defendant would have benefitted from the witness’s testimony).
3
Forsyth does not distinguish his contention that trial counsel failed to
subpoena Hudgins from his contention that trial counsel failed to call her, so we
will not treat the two differently. See Tex. R. App. P. 47.1.
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There is little question that Hudgins was available on the day of the trial
and that her testimony would have benefitted Forsyth, but this does not mean
that trial counsel’s failure to subpoena her constituted ineffective assistance
because Forsyth has failed to overcome the presumption that trial counsel’s
decision not to subpoena Hudgins “might be considered sound trial strategy.”
See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Indeed, the decision to
subpoena a defense witness is considered a matter of trial strategy. Robertson
v. State, No. 01-02-00046-CR, 2002 WL 31236391, at *1 (Tex. App.—Houston
[1st Dist.] 2002, no pet.) (not designated for publication) (“Placing a witness
under orders of the trial court, rather than merely asking the witness to return
voluntarily, might cause apprehension, resentment, or even injurious testimony
on the part of a witness alienated by the coercive action.”); see Pineda v. State, 2
S.W.3d 1, 6 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (finding no authority
for the proposition that failure to subpoena a witness is ineffective assistance).
By not addressing trial counsel’s motives, Forsyth appears to take the
position that regardless of motive, trial counsel’s failure to subpoena Hudgins
was “so outrageous that no competent attorney would have engaged in it.” See
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). However,
this is not a case in which trial counsel wholly failed to contact a defense witness.
Cf. Shelton v. State, 841 S.W.2d 526, 526–27 (Tex. App.—Fort Worth 1992, no
pet.) (holding, without any evidence of counsel’s trial strategy, that counsel’s
failure to contact a key defense witness was ineffective). “Rather, this is a case
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in which the . . . witness promised to appear and testify at trial and counsel
reasonably expected [her] to appear, but the witness nonetheless did not.”
Pineda, 2 S.W.3d at 6; see Robertson, 2002 WL 31236391, at *1 (holding that
even though trial counsel had disavowed any trial strategy in not requesting
subpoenas, his belief that the witness would appear was not error, much less
conduct falling below objective standards of reasonableness).
Therefore, even if trial counsel’s only reason for failing to subpoena
Hudgins was his belief that she would appear, Forsyth has not overcome the
presumption that this fell within the wide range of reasonable professional
assistance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Salinas, 163
S.W.3d at 740. Because Forsyth did not satisfy his burden to meet the first
prong of Strickland, we need not address the second prong. See Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. Therefore, we hold that trial counsel was not
ineffective, see id. at 687, 104 S. Ct. at 2064, and we overrule Forsyth’s first and
second issues.
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V. Conclusion
Having overruled each of Forsyth’s issues, we affirm the trial court’s
judgment.4
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 12, 2012
4
Our holding, of course, does not foreclose Forsyth’s right to pursue a
post-conviction writ upon the conclusion of this appeal. See Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (recognizing that “an application for
a writ of habeas corpus is the more appropriate vehicle to raise ineffective
assistance of counsel claims”).
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