Opinion
No. 11-18-00230-CR
08-27-2020
DUSTIN DOBBINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court Brown County, Texas
Trial Court Cause No. CR24618
MEMORANDUM OPINION
Appellant waived his right to be tried by a jury and entered an open guilty plea to two counts of sexual assault of a child. The trial court found Appellant guilty on each count and assessed Appellant's punishment at confinement for fourteen years. Subsequently, Appellant filed a motion for new trial based upon a claim of ineffective assistance of counsel. The trial court denied the motion without a hearing, and this appeal followed. We affirm.
During the plea proceedings, the trial court admonished Appellant that the range of punishment for these offenses was incarceration for a period of two to twenty years and that he could also be fined up to $10,000. Appellant told the trial court that he understood. The trial court also discussed the potential for deferred adjudication and community supervision and indicated that it could choose any punishment within the range: deferral, or up to twenty years in prison. Appellant again told the trial court that he understood.
At the punishment hearing, the State called victims Jill Smith, Lindsey Ornelas, and Ashley Mills (all pseudonyms) as witnesses. Smith testified that she met Appellant when she was fourteen years old. After they met, Smith and Appellant had a flirtatious relationship and began to communicate by text messages. Smith testified that Appellant frequently asked her to send naked photographs of herself through Facebook messenger. Eventually, the relationship escalated to penetrative and oral sex. Smith testified that penetrative sex occurred on at least three occasions and that oral sex occurred multiple times, "when [they] had the chance." Smith also testified that Appellant did not use protection and that she contracted a sexually transmitted disease from Appellant.
Lindsey Ornelas, Appellant's cousin, testified that when she was fifteen years old, she and her sixteen-year-old friend Ashley snuck out late at night to drink with Appellant. Appellant took Lindsey and Ashley to a shed by his house. In the shed, the three drank beer and played games for a while, and then Appellant and Ashley had sex while Lindsey was in the room. Later, Appellant and Lindsey had sex before Appellant took Lindsey home.
Ashley testified that she remembered the time that she snuck out with Lindsey to meet an "older guy." She did not remember his name; he was older and promised to buy the girls alcohol in exchange for sex. Ashley testified that they went to a shed by his house where they all drank beer, played games, and smoked cigarettes. Ashley testified that the man started to have sex with Lindsey, but Lindsey "got scared" and said that it hurt. Ashley decided that she would have sex with the man instead, which she did, while Lindsey watched.
William Gatlin, Jill's father, testified that after he caught Jill in a lie, he confronted Appellant about his relationship with Jill. Appellant admitted that he had kissed and had sex with Jill; Gatlin assaulted him.
Appellant testified at trial; he admitted that he had had a relationship with Jill and that he had engaged in "trysts" with her while she was underage. He also admitted that he had had sex with Ashley. Appellant testified that he understood the severity of the charges and indicated that he hoped to receive deferred adjudication because he would not sexually assault a child again.
On cross-examination, Appellant said that he never had penetrative sex with Jill but that he did engage in oral sex with her on one occasion. He denied that he had sex with Lindsey, but again admitted that he had sex with Ashley. When asked about his admission to Jill's father, Appellant said that he only admitted that he had had sex with Jill because he felt pressured to do so and "was just trying to get them to be quiet."
In his sole issue on appeal, Appellant asserts a claim of ineffective assistance of counsel. Appellant maintains that he "entered a guilty plea to the two-count indictment hoping that the Court would grant deferred adjudication community supervision." Appellant now contends that because he received incarceration rather than deferred adjudication, his counsel was ineffective. Appellant argues that his counsel failed (1) to understand the evidentiary requirements necessary to obtain his desired relief, (2) to present necessary mitigating evidence in the form of expert testimony, and (3) to present closing arguments. Absent these deficiencies, Appellant argues that there is reasonable probability that the result of his case would have been different.
When a claim of ineffective assistance of counsel is raised in a motion for new trial and reasserted on appeal, we "analyze the ineffective assistance of counsel issue as a challenge to the denial of the motion for new trial." Minassian v. State, 490 S.W.3d 629, 641 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd)); see also Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018); Lopez v. State, No. 11-15-00313-CR, 2018 WL 4656270, at *3 (Tex. App.—Eastland Sept. 28, 2018, no pet.) (mem. op., not designated for publication). We review a trial court's denial of a motion for new trial for an abuse of discretion. Collier v. State, 528 S.W.3d 544, 546 (Tex. App.—Eastland 2016, pet. ref'd). A trial court abuses its discretion if "no reasonable view of the record could support the trial court's ruling." Id.
To succeed on a claim of ineffective assistance of counsel, Appellant must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test contains two prongs: performance and prejudice. Id. at 687. "First, the [appellant] must show that counsel's performance was deficient. . . . Second, the [appellant] must show that the deficient performance prejudiced the defense." Id. Appellant must meet both prongs to succeed. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Appellate review of counsel's performance is highly deferential, and we presume that counsel's actions fell within the wide range of reasonable and professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
To overcome the presumption of effective professional assistance, an appellant's claim must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Generally, a direct appeal is inadequate because the record is not fully developed. Menefield v. State, 363 S.W.3d 591, 592-93. (Tex. Crim. App. 2012) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). A record that provides no explanation for a counsel's actions will not overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Thompson, 9 S.W.3d at 813-14; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Further, if trial counsel has not had an opportunity to explain the challenged actions, then we will not conclude that those actions constituted deficient performance unless they were so outrageous that no competent attorney would have engaged in them. See Goodspeed, 187 S.W.3d at 392; Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Here, Appellant claims that his trial counsel had a duty to understand the statutory requirements necessary for deferred adjudication community supervision. Article 42A of the Texas Code of Criminal Procedure provides that a trial court may defer adjudication of guilt of a defendant who has been charged with sexual assault of a child "only if the judge makes a finding in open court that [doing so] is in the best interest of the victim." TEX. CODE CRIM. PROC. ANN. art. 42A.102(a) (West Supp. 2019). Appellant contends that this section places an affirmative duty on trial counsel to present testimony "from which the court could conclude" that deferred adjudication was in the best interest of the victim. The State argues, and we agree, that no such affirmative rule exists.
Appellant simply alleges on appeal, without any suggestion as to what any new evidence might show, that his trial counsel failed to understand the requirements for the desired relief. Notably, Appellant does not allege that he would have changed his plea or that he would not have waived his right to a jury absent his trial counsel's failure. Because the record is silent as to trial counsel's knowledge of the requirements and any potential strategy that trial counsel may have employed, we presume that counsel's actions constituted professional conduct. See Thompson, 9 S.W.3d at 814.
Appellant also complains that trial counsel failed to call Anna Shursen, a licensed professional counselor who had evaluated Appellant and found him to be a low risk to reoffend. To obtain relief based on an uncalled witness, Appellant "must show [that] the witness was available to testify and that the testimony sought would have been of some benefit to his defense." Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (citing Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004)).
To meet the availability requirement, the proposed witness must testify or swear in an affidavit that she was available to testify at the defendant's trial. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). Here, the record contains neither any testimony nor an affidavit in which it is indicated that Shursen was available. Without such testimony, Appellant cannot show that counsel was ineffective for failure to call Shursen, and he cannot show that her testimony would have benefited his defense. See Crawford, 355 S.W.3d at 199.
Appellant's final arguments relative to his claim that he received ineffective assistance of counsel are that his trial counsel failed to make a closing argument and that trial counsel made no use of the expert report that had been admitted into evidence. Several courts have analyzed the necessity that trial counsel give opening statements and closing arguments. See, e.g., Garcia v. State, No. 11-13-00360-CR, 2015 WL 6121352, at *2 (Tex. App.—Eastland Oct. 8, 2015, pet. ref'd) (mem. op., not designated for publication) (closing arguments); Perkins v. State, No. 11-05-00088-CR, 2007 WL 178234, at *2 (Tex. App.—Eastland Jan. 25, 2007, no pet.) (not designated for publication) (opening arguments); Mayfield v. State, No. 04-02-00635-CR, 2003 WL 22047148, at *4 (Tex. App.—San Antonio Sept. 3, 2003, pet. ref'd) (mem. op., not designated for publication) (closing arguments). The cases that we have cited make clear that, in order to find that counsel rendered ineffective assistance, the record must "affirmatively" show that the outcome of the case would have changed had counsel presented opening statements or closing arguments. Garcia, 2015 WL 6121352, at *2; Perkins, 2007 WL 178234, at *2; Mayfield, 2003 WL 22047148, at *4.
Appellant pleaded guilty and testified that he had sex with one sixteen-year-old victim and attempted to have sex with a fourteen-year-old victim. Appellant also testified he was not a danger to the community and that he would not continue to seek out sex with fourteen or fifteen-year-old girls in the future.
When the trial court assessed punishment, it stated "[t]here is not a doubt in my mind that you are a sexual predator. That evidence is overwhelming here in this record. And it occurs to the Court that society needs to be protected from you." There is nothing in the record that affirmatively shows why or how, under these facts, a closing argument would have altered the trial court's assessment of punishment.
Although Appellant may have "hoped" that the trial court would grant him deferred adjudication, he has presented nothing, either at the trial court or here, to satisfy either prong of Strickland. Based on our review of the record, we cannot say that the trial court abused its discretion when it denied Appellant's motion for new trial. We overrule Appellant's sole issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE August 27, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.