Opinion
NO. 03-17-00309-CR NO. 03-17-00310-CR NO. 03-17-00311-CR
02-28-2018
James Bryan Edwards, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NOS. B-16-0403-SB , B-16-0871-SA, & B-16-0872-SA
HONORABLE BROCK JONES, JUDGE PRESIDING MEMORANDUM OPINION
Under three separate indictments, James Bryan Edwards was charged with burglary of a habitation, criminal mischief, and retaliation against a public servant. See Tex. Penal Code §§ 28.03(a), 30.02(a)-(b), 36.06(a)(1)(c) (setting out elements of offense of criminal mischief, burglary of habitation, and retaliation, respectively); see also id. §§ 28.03(b)(4)(D) (setting out circumstances in which criminal mischief is state-jail felony), 30.02(c)(2) (providing that offense of burglary of habitation is second-degree felony), 36.06(c) (stating that, in general, retaliation is third-degree felony). Edwards entered a plea of not guilty to the retaliation charge and requested a bench trial, but he pleaded guilty to the remaining two offenses. A unitary proceeding was convened that addressed the punishment phases for the burglary offense and the criminal-mischief offense along with the guilt-or-innocence phase and the punishment phase for the retaliation offense. During the proceeding, the district court found Edwards guilty of the three offenses and sentenced Edwards to 730 days' confinement for the criminal-mischief conviction, to seven years' imprisonment for the burglary conviction, and to five years' imprisonment for the retaliation conviction. See id. §§ 12.33, .34, .35 (listing permissible punishment ranges for second-degree felonies, third-degree felonies, and state-jail felonies, respectively). In one issue on appeal, Edwards contends that his trial attorney provided ineffective assistance of counsel. We will affirm the district court's judgments of conviction.
DISCUSSION
In his sole issue on appeal, Edwards contends that his trial attorney was ineffective because he failed "to investigate, develop, and present mitigating evidence concerning [Edward]'s degenerating mental health."
To succeed on an ineffectiveness claim, a defendant must overcome the strong presumption that his trial "counsel's conduct falls within the wide range of reasonable professional assistance" and must show that the attorney's "representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984); see also Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (explaining that reviewing courts "must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case"). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). "It will not suffice for Appellant to show 'that the errors had some conceivable effect on the outcome of the proceeding.'" Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 693). "Rather, he must show that 'there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Id. (quoting Strickland, 466 U.S. at 695). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
"[A]n appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Evaluations of effectiveness are based on "the totality of the representation." Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref'd) (providing that assessment should consider "cumulative effect" of counsel's deficiencies). Furthermore, even though a defendant is not entitled to representation that is error-free, a single error can render the representation ineffective if it "was egregious and had a seriously deleterious impact on the balance of the representation." Frangias, 450 S.W.3d at 136. In addition, a defendant cannot claim that his trial counsel provided ineffective assistance of counsel by failing to call witnesses unless the defendant can show that the witnesses were available and that their testimony would have benefitted the defendant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Brennan v. State, 334 S.W.3d 64, 79 (Tex. App.—Dallas 2009, no pet.); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref'd).
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim "is generally undeveloped." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (stating that "[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed, 187 S.W.3d at 392 (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440.
When presenting his claims on appeal, Edwards contends that his "trial counsel's performance was deficient where he failed to fully and properly investigate [Edwards]'s clear history of degenerating mental health." As support for his assertion that his mental health was declining, Edwards points to the testimonies from various witnesses presented during the trial, including his own testimony. For example, Officer Adrian Castro testified during the trial that he had an informal encounter with Edwards in which he told Edwards that he would like to meet with Edwards to discuss a case and gave Edwards a piece of paper with his name and number on it, and Officer Castro then stated that other officers later found that piece of paper "wrapped around the top bullet of a magazine of [Edwards's] firearm." In addition, the State admitted into evidence recordings of several 911 phone calls that Edwards made in which he claimed that the police were near his property and were "persecut[ing]" him. Furthermore, Officer Joey Rios testified that a few months before the retaliation offense allegedly occurred, he made a welfare check regarding Edwards after Edwards made statements indicating that he wanted to kill himself, and Officer Rios related that Edwards was subsequently transferred to a mental-health facility. Moreover, Officer Brian Gesch testified regarding the night that Edwards allegedly committed the offense of retaliation against a public servant and explained that Edwards went in and out of his house while yelling and then got on his roof to yell at some of the responding officers, and Officer Gesch also recalled that when he talked to Edwards over the phone, Edwards would "rant and yell, and then he would hang up." Additionally, Officer Cory Moore provided testimony regarding the retaliation offense and stated that Edwards threatened one of the responding officers and then asked another officer to accompany him into his house and to "'watch his back,'" and Officer Moore explained that Edwards's home "was a disaster on the inside, trash and just things everywhere." Further, Officer Sandra Ruiz-Kolb recalled that after she went to Edwards's house on the night of the alleged retaliation offense, Edwards yelled at her and other officers, threatened to shoot her and blow up his neighborhood, stated that he would not go back to the mental-health facility, walked in and out of his house, and climbed onto his roof.
Regarding his own testimony, Edwards points to the portions in which he discussed his drinking, stated that he "self medicates" with prescription drugs and was on pain medicine when he allegedly threatened Officer Ruiz-Kolb, discussed how he had been sent to a mental-health facility twice in 2016 and how he had never been to mental-health facility before 2016, mentioned that he and his wife separated in 2016, related that he began having financial problems around the time that his wife left, and explained that in the two years before the trial, he had been given criminal-trespass warnings, had been arrested for driving while intoxicated, and had been arrested for public intoxication.
In light of the testimony and evidence summarized above, Edwards contends that the record establishes that "some time before or around 2016, [his] overall level of functioning began to degrade." Moreover, Edwards argues that even though he had a "clear history of degenerating mental health," his attorney failed "to fully investigate" his mental health or present this mitigating evidence through the "testimony and / or evaluation or report by a mental health professional." More specifically, Edwards contends that there is nothing in the record regarding any efforts his attorney made to seek "out the services of a psychiatrist, psychologist, or any other mental health professional," that there is nothing in the record indicating that his attorney sought funds from the district court to obtain the services of a mental-health professional, that "no evaluation or report from a mental health professional . . . was filed with the clerk," and that "no mental health professional testified on [his] behalf." Further, Edwards contends that his trial attorney "had a duty to present mitigating evidence, especially where [his] trial counsel knew or should have known that the [State] would present aggravating evidence at punishment" pertaining to his recent erratic and violent behavior. As an alternative framing to his arguments on appeal, Edwards contends that his "trial counsel's deficient performance . . . can also be[] seen as a failure to call a . . . mental health professional" as a witness. Finally, Edwards contends that "testimony from a mental health professional would not have been merely cumulative" of evidence presented through other witnesses because the testimony would likely have taken "those facts and use[d] them to come to a larger conclusion e.g. a diagnosis or an explanation of [Edwards]'s conduct" and would have discussed "whether treatment [wa]s a viable option."
Although Edwards filed a motion for new trial, he did not argue in the motion that his trial attorney provided ineffective assistance of counsel, and no hearing on the motion was held. Accordingly, Edwards's trial attorney has not been given an opportunity to explain his trial strategy for not calling any witnesses other than Edwards or to explain what, if any, investigation he performed regarding Edwards's mental health. Cf. Lair v. State, 265 S.W.3d 580, 593-96 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd) (determining that new punishment hearing should be held where defendant attached affidavits from "almost two dozen witnesses" to motion for new trial "all of whom stated that they were not contacted by appellant's trial counsel and that they were ready, willing, and able to testify on appellant's behalf at the punishment stage" and where trial counsel also submitted affidavit stating that "he did not even interview th[o]se witnesses" and that "the importance of humanizing appellant to the jury outweighed the fact that the State could have had each of the witnesses acknowledge appellant's prior felony conviction"); Shanklin v. State, 190 S.W.3d 154, 163-66, 168 (Tex. App.—Houston [1st Dist.] 2005) (remanding for new punishment hearing after determining that trial attorney provided ineffective assistance of counsel where affidavits from 20 witnesses were submitted as part of motion for new trial describing what witnesses' testimonies would have been and stating that trial attorney never contacted them and where trial attorney admitted in his affidavit "that he 'did not conduct any meaningful investigation'" regarding "'the punishment stage'"), pet. dism'd, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007). Moreover, the record before this Court is silent regarding any efforts that his attorney made to investigate Edwards's mental health and regarding his attorney's reasons for not calling a mental-health professional as a witness. See Mallett, 65 S.W.3d at 63 (providing that "[w]hen the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable"); see also Harkcom v. State, No. 02-12-00576-CR, 2016 WL 3960581, at *3 (Tex. App.—Fort Worth July 21, 2016, no pet.) (mem. op., not designated for publication) (explaining that although trial "counsel has a duty to investigate and to interview potential witnesses . . . [,] the decision whether to present witnesses is largely a matter of trial strategy"). Additionally, although Edwards does not specifically assert that his attorney should have raised the issue of his competency when arguing that his mental health was declining, we note that the record in this case demonstrates that many of the factors relied on by courts when making competency determinations indicated that Edwards was competent at the time of the trial. Under the Code of Criminal Procedure, competency determinations are based on, among other factors, the ability of the defendant to perform the following:
(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;Tex. Code Crim. Proc. art. 46B.024(1).
(B) disclose to counsel pertinent facts, events, and states of mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify.
The record before this Court reveals that Edwards responded appropriately when the district court asked him whether he understood the nature of the charges against him and their accompanying punishment ranges, that Edwards communicated that he understood that he was waiving various rights by entering guilty pleas to two of the charged offenses, that Edwards stated that he was entering his guilty pleas voluntarily, that Edwards entered a plea of not guilty to the retaliation charge, that Edwards responded appropriately to the questions he was asked during his testimony, and that Edwards exhibited appropriate courtroom behavior throughout all of the proceedings without incident. Cf. Magic v. State, 217 S.W.3d 66, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (overruling ineffective assistance-of-counsel claim that trial attorney should have requested competency hearing because defendant, who had been diagnosed as bipolar, competently interacted with trial court). Moreover, nothing in the record indicates that Edwards was unable to consult with his counsel or understand the nature of the proceedings against him. Cf. Iniquez v. State, 374 S.W.3d 611, 617 (Tex. App.—Austin 2012, no pet.) (applying prior version of governing statute and explaining that evidence of history of mental illness does not necessarily compel requirement that competency determination be made if it does not show that defendant is not currently capable of communicating with his lawyer or understanding nature of proceedings).
In light of the undeveloped record before this Court, it is not entirely clear that the first prong of the Strickland test could be met here. However, even assuming for the sake of argument that the record before this Court established that the alleged failures to investigate and to call additional witnesses were unreasonable in these circumstances, see Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006) (explaining that reasonableness of decision not to investigate must be considered in light of all of circumstances and assessed by applying heavy amount of deference to attorney's decision), we would still be unable to conclude that the second prong of Strickland has been met.
When arguing that the second prong is met because the results of the trial would have been different had his trial counsel performed an investigation of his mental health or called additional witnesses to testify regarding his mental health, Edwards asserts that his attorney's failures to investigate and call additional witnesses deprived him of "a viable defense and all but precluded the possibility of probation with treatment in lieu of incarceration." Specifically, Edwards contends that "there can be no question that there would have been a mental health professional available to testify. It is a given that there are generally mental health professionals with whom defense attorneys can contract to make psychological evaluations or reports of defendants." Moreover, Edwards contends that "[t]here is a reasonable probability that . . . the testimony of a mental health professional would" have benefitted him because "[t]he mental health expert would have been able to tell the trial court if treatment was a possibility and what sort of treatment would be appropriate."
However, Edwards has not met his burden of establishing that witnesses were available to testify and showing what their testimonies would have been, and in the absence of any evidence in the record indicating what the results of an investigation of Edwards's mental health might have revealed or what the testimony from the additional witnesses would have been, Edwards's arguments amount to assertions that the failures to investigate and call additional witnesses had a conceivable effect on the outcome of the trial, which is insufficient to support a claim of ineffective assistance. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (cautioning reviewing courts against speculating "about the existence of" mitigating evidence and noting that "[i]neffective assistance of counsel claims are not built on retrospective speculation"); Straight v. State, 515 S.W.3d 553, 568 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (explaining that ineffective-assistance claim "based on trial counsel's general failure to investigate" will fail absent "a showing of what an investigation would have revealed that reasonably could have changed the result of the case" and overruling issue because defendant "did not present any evidence regarding what" investigation "would have revealed"); Brennan, 334 S.W.3d at 79 (overruling issue asserting that trial counsel was ineffective for failing to call witness to stand when defendant failed to meet his burden of establishing that witness was available); Torres v. State, No. 13-05-00778-CR, 2007 WL 2052649, at *3 (Tex. App.—Corpus Christi July 19, 2007, pet. ref'd) (mem. op., not designated for publication) (disagreeing with assertion that failure to request presentence-investigation report was ineffective assistance because "[t]he effect of not requesting a PSI report can only be speculative" and because defendant had to show that "the alleged errors by trial counsel had an adverse affect on the defense").
Having determined that Edwards has not shown that the second prong of Strickland has been met in this case, we need not further address the matter of whether his trial counsel provided ineffective assistance of counsel by failing to investigate Edwards's mental health or call a mental-health professional as a witness, but we do emphasize that ineffectiveness challenges are considered in light of "the totality of the representation" provided by the attorney. See Thompson, 9 S.W.3d at 813; see also Simmons v. State, Nos. 03-11-00229—00230-CR, 2012 WL 3629864, at *4 (Tex. App.—Austin Aug. 22, 2012, pet. ref'd) (mem. op., not designated for publication) (determining that "[t]he critical weakness" in ineffectiveness claim was "its failure to consider the totality of trial counsel's representation"). Moreover, we note that Edwards's attorney filed a motion requesting "probation in the event that he is convicted and the punishment is not assessed at more than 10 years' imprisonment." In addition, although Edwards's attorney informed the district court that he had been unable to fully review recordings from the dashboard cameras of several of the police officers who investigated the retaliation offense, Edwards's attorney explained that the evidence was only made available on the day before trial, that he notified Edwards of the development and told Edwards that he could likely postpone the trial if Edwards wanted, and that Edwards stated that "he wanted to go ahead and get this over with," and Edwards then personally informed the district court that he wanted the trial to proceed. Furthermore, during the trial, Edwards's attorney extensively cross-examined all of the State's witnesses regarding their interactions with Edwards and regarding the criminal conduct that Edwards allegedly committed. Additionally, after Edwards elected to testify, his attorney asked him questions allowing him to explain that the witnesses may have misunderstood his behavior and misconstrued his words as threats, that he had been drinking and taking pain medication on the day that he allegedly committed the offense of retaliation against a public servant, that he did not have any weapon on him during his interactions with the police, that he was "ashamed" of his behavior, and that he would never again behave in a similar manner. During his closing argument, Edwards's attorney emphasized that his client had never been convicted of a felony before, that Edwards did not actually intend to commit the burglary offense, that Edwards returned all of the items that he took from his neighbor, that he accepted responsibility for two of the charged offenses, that he was intoxicated on the day that he allegedly made the threat against Officer Ruiz-Kolb, that he did not have any guns on him when he made the alleged threat, and that several factors contributed to his recent bad decisions, including the facts that his wife left him and that he lost his job. In addition, Edwards's attorney asked the district court to give Edwards deferred adjudication for the offenses that he pleaded guilty to and to either find Edwards not guilty of the retaliation offense or place him on community supervision.
With the preceding in mind, we conclude that the totality of the representation reflects that Edwards was provided with effective assistance of counsel during the trial.
For all the reasons previously given, we overrule Edwards's sole issue on appeal.
CONCLUSION
Having overruled Edwards's sole issue on appeal, we affirm the district court's judgments of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: February 28, 2018 Do Not Publish