Opinion
No. 05-19-01276-CR
08-11-2020
NICHOLAS EARL BROCK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-16-53405-X
MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Nowell
Opinion by Justice Nowell
Nicholas Earl Brock was convicted of possession with intent to deliver a controlled substance in Penalty Group 1, namely, methamphetamine, in the amount of four grams or more but less than 200 grams. Pursuant to the terms of a plea bargain, he pleaded guilty. The trial court deferred a finding of guilt and placed him on six years' deferred adjudication probation. The State subsequently filed a motion to adjudicate based on appellant's violation of a condition of probation. During the hearing on the State's motion, appellant pleaded true to the alleged violation and the court found appellant violated the term as alleged, found appellant guilty of the offense of possession with intent to deliver a controlled substance, and sentenced appellant to twelve years' confinement. In a single issue, appellant argues his trial counsel was ineffective for failing to object to hearsay evidence at the revocation hearing. We affirm the trial court's judgment.
Appellant also pleaded guilty to unauthorized use of a motor vehicle, and the trial court sentenced him to one year incarceration. That conviction is not subject to this appeal.
FACTUAL BACKGROUND
The trial court conducted a hearing on the State's motion to adjudicate in October 2019. Appellant testified at the hearing. On cross-examination, the State asked appellant about two recent incidents at the jail in which he was involved, and appellant answered the State's questions without objection. The jail generated a report for each incident, and the trial court asked the State to read the incident reports aloud into the record. One report, dated August 16, 2019, indicates appellant was disrespectful to the jail staff. The second report, dated September 10, 2019, states appellant refused to obey an order of a deputy or staff member. Appellant's counsel did not object to the State reading either report into the record.
The incident reports are not included in the record. The reporter's record includes the State's recitation of the content of the reports.
After hearing the evidence presented at the hearing, the trial court sentenced appellant to twelve years' confinement. This appeal followed.
LAW & ANALYSIS
In a single issue, appellant asserts he received ineffective assistance of counsel because his attorney failed to object to inadmissible hearsay. A defendant is entitled to reasonably effective assistance of counsel under the Sixth Amendment to the United States Constitution. U.S. CONST. amend. VI. The right to counsel, however, does not mean the right to errorless counsel. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); Rubio v. State, 596 S.W.3d 410, 426 (Tex. App.—Dallas 2020, pet. granted). In most cases, we review an ineffective assistance of counsel claim under the Strickland v. Washington standard, which includes a performance prong and a prejudice prong. 466 U.S. 668, 687 (1984); Rubio, 596 S.W.3d at 426. To obtain a reversal of a conviction due to ineffective assistance of counsel under Strickland, an appellant must demonstrate by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Rubio, 596 S.W.3d at 426.
Our review of counsel's representation under the first prong of Strickland is highly deferential. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance, including the possibility that counsel's actions were strategic. Strickland, 466 U.S. at 689; Rubio, 596 S.W.3d at 426. We focus on the totality of the representation afforded and not on individual alleged errors. Rubio, 596 S.W.3d at 426. We consider the adequacy of assistance as viewed at the time of trial, not in hindsight. Id. We may not second-guess counsel's strategic decisions, and defense counsel's trial strategy cannot be considered ineffective assistance of counsel simply because another attorney would have used a different strategy. Id.
To defeat the presumption of reasonable representation, an allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Id. We will not speculate to find defense counsel ineffective. Id. A silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Id. Thus, if the record does not contain affirmative evidence of trial counsel's reasoning or strategy, we normally presume counsel's performance was not deficient. Id. at 426-27. Moreover, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). For these reasons, the record on direct appeal frequently is insufficiently developed to support a claim of ineffective assistance of counsel. Rubio, 596 S.W.3d at 427. The best way to make a sufficient record to support such a claim is by a hearing on an application for writ of habeas corpus or, alternatively, a hearing on a motion for new trial. Id. Only when "counsel's ineffectiveness is so apparent from the record" will an appellant asserting an ineffective assistance of counsel claim prevail on direct appeal. Rubio, 596 S.W.3d at 427; see also Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003).
To show prejudice under the second prong of Strickland, an appellant must demonstrate a reasonable probability that the outcome would have differed but for trial counsel's errors. Strickland, 466 U.S. at 694; see also Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 694). It is not sufficient to show defense counsel's errors "had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Rather, to establish prejudice, an appellant must show that counsel's errors were "so serious as to deprive the defendant of a fair trial, a trial whose result was reliable." Id. at 687. Failure to satisfy either prong of the Strickland standard is fatal. Rubio, 596 S.W.3d at 427. Thus, we need not examine both Strickland prongs if one cannot be met. Rubio, 596 S.W.3d at 427; see also Strickland, 466 U.S. at 697.
On appeal, appellant asserts his attorney was ineffective because she did not object to "inadmissible hearsay." But he fails to identify which evidence he considers inadmissible hearsay. In his brief, appellant complains his attorney did not object to the State cross-examining him about the jail incidents and also did not object to the State reading the incident reports into the record at the trial court's request. Because appellant's testimony about the events was not hearsay, we assume appellant complains about the State reading the incident reports into the record. See generally TEX. R. EVID. 801(d) (definition of hearsay); 802 (rule against hearsay).
To meet the first prong of the Strickland standard, appellant must show his trial counsel's performance was deficient. See Rubio, 596 S.W.3d at 426. The record before us is silent concerning trial counsel's motivations and trial strategy because appellant did not file a substantive motion for new trial and no hearing was conducted. We may not speculate as to why trial counsel did not object to the State reading the incident reports into the record at the trial court's request. See id. at 435 (when trial record is silent as to reasons defense counsel did not object to witness testimony "we must presume the actions taken by trial counsel were part of a strategic plan for representing his client"); see also Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (declining to speculate as to reason defense counsel failed to object where the record is silent); Killian v. State, No. 05-19-00227-CR, 2020 WL 2847275, at *6 (Tex. App.—Dallas June 2, 2020, no pet. h.) (mem. op., not designated for publication) (same); Green v. State, 191 S.W.3d 888, 894-95 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (a silent record regarding counsel's motivation for not objecting prevents finding that counsel's performance was deficient). Instead, we indulge a strong presumption that appellant's trial counsel's conduct fell within the wide range of reasonable professional assistance, including the possibility that counsel's actions were strategic, and that counsel's conduct was not deficient. See Rubio, 596 S.W.3d at 426-27. Appellant has not overcome that presumption.
Because appellant has not met his burden to demonstrate by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness, we need not consider whether appellant has shown there is a reasonable probability that, but for counsel's alleged deficient performance, the result of the proceeding would have been different. Appellant has not met the standard set forth in Strickland. We overrule appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
191276F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-16-53405-X.
Opinion delivered by Justice Nowell. Justices Schenck and Molberg participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 11th day of August, 2020.