No. 05-10-00374-CR
Opinion Filed June 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. WX08-90039-R.
Before Justices MORRIS, MOSELEY, and LANG. Opinion By Justice MOSELEY.
JIM MOSELEY, Justice.
Lorenzo Herrera appeals the trial court's order denying his application for writ of habeas corpus. In two points of error, appellant contends the trial court erred in not finding that his trial counsel and appellate counsel rendered ineffective assistance in connection with his negotiated plea to a charge of possession of child pornography. We have jurisdiction because appellant seeks relief from a order placing him on community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072 sec. 8. (Vernon 2005). We affirm.
BACKGROUND
While searching appellant's video camera, appellant's wife, T.H., discovered a videotape appellant had recorded secretly that depicted appellant having sexual intercourse with her twice while she was sleeping under the influence of prescription medicine. T.H. contacted Mesquite police, told them appellant had sexually assaulted her, and gave the videotape to Mesquite Police Investigator Mark Bradford. T.H. also told Bradford that she had observed appellant masturbating while looking at a pornographic photograph of a "girl" having sex with an older man. Bradford prepared and signed an affidavit in which he recounted T.H.'s allegations. Bradford presented the affidavit to a Dallas County Magistrate to obtain an arrest warrant for appellant for the sexual assault and a search warrant allowing officers to search appellant's residence for items described in Bradford's affidavit. The affidavit was incorporated by reference into the search warrant. Appellant's computer system components and video recording devices were among the items Bradford wanted seized. Police officers arrested appellant at his residence pursuant to the arrest warrant. Bradford then arrived with the search warrant and seized appellant's computer. Bradford left a copy of the first page of the search warrant at the residence, but did not leave a copy of his affidavit that the warrant incorporated by reference. Upon searching appellant's computer for evidence, police investigators found child pornography. The record shows appellant's arrest on the sexual assault charge was on July 20, 2004, and that appellant was brought before a magistrate on the following day. Appellant was unable to make bail and remained incarcerated on the sexual assault charge. According to appellant, he was arrested for the current offense on February 1, 2005 and formally indicted on February 25, 2005; he was first taken before a magistrate in connection with this case on March 12, 2005. It is undisputed that appellant remained incarcerated from the July 20, 2004 until the date of his plea hearing Appellant was indicted for both sexual assault and possession of child pornography. Appellant filed a motion to suppress contesting the seizure of his computer. Although the motion was filed only in the sexual assault case, the parties treated it as applying to both cases. The trial court denied the motion after a hearing. Appellant then entered a negotiated guilty plea to the offense of possession of child pornography and also pleaded guilty to a reduced misdemeanor charge of assault. Pursuant to the plea bargain agreement in the child pornography case, the trial court deferred adjudication of appellant's guilt and placed him on community supervision for two years. Appellant appealed only the child pornography conviction. This court affirmed appellant's conviction and the court of criminal appeals refused his petition for discretionary review. See Herrera v. State, No. 05-05-00993-CR (Tex. App.-Dallas June 8, 2007, pet. ref'd.). Appellant then filed an application for habeas corpus, which the trial court denied. STANDARD OF REVIEW
We review for abuse of discretion the trial court's decision to deny habeas corpus relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Appellant bears the burden to prove his entitlement to the relief he seeks by a preponderance of the evidence. Id. We review the evidence presented in the light most favorable to the trial court's ruling. Id. In conducting our review, we afford almost total deference to the trial court's determination of the historical facts the record supports, especially when the fact findings require an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). INEFFECTIVE ASSISTANCE OF COUNSEL
In his first point of error, appellant contends the trial court erred in finding that trial counsel did not render ineffective assistance. In his second point of error, appellant contends his retained appellate counsel rendered ineffective assistance in drafting his appellate brief and petition for discretionary review to the court of criminal appeals. We evaluate the effectiveness of trial counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Appellant has a constitutional right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U. S. 387, 396 (1985); Ex parte Coy, 909 S.W.2d 927, 928 (Tex. Crim. App. 1995). We judge the effectiveness of appellate counsel under the same standard governing the effectiveness of trial counsel. Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App. 2001); Williams v. State, 946 S.W.2d 886, 903-04 (Tex. App.-Waco 1997, no pet.). To fulfill his duty, counsel need not raise every nonfrivolous issue requested by his client. See Jones v. Barnes, 463 U.S. 745, 751, 754 (1983). We will not second-guess counsel's reasonable professional judgments about how to prosecute the appeal. Id. at 754. COMPLAINTS CONCERNING TRIAL COUNSEL
Appellant specifically complains that trial counsel failed to: (1) cite and provide to the trial court copies of relevant federal court opinions, (2) raise an objection to a statutory violation, (3) call appellant as a witness, (4) object to incomplete admonishments, (5) object to a delay in taking appellant before a magistrate, (6) obtain an examining trial, (7) object to the absence of an arrest warrant, and (8) request findings of fact. We will address each of appellant's complaints in turn. Appellant first contends trial counsel failed to provide the trial court with copies of federal cases that appellant contends support his view that the evidence seized from his apartment should be suppressed. Appellant further complains trial counsel failed to cite the United States Supreme Court's decision in Groh v. Ramirez, 540 US. 551 (2004). (The Groh opinion deals with the particularity requirement in a search warrant.) Appellant contends Groh is material to his Fourth Amendment defense because, like the respondent in Groh, appellant did not receive a full copy of the warrant setting forth the items to be seized. Appellant contends counsel was unprepared to discuss Groh with the trial court despite the fact that appellant had provided trial counsel with a copy of the opinion before the hearing. As the State points out, trial counsel raised the particularity issue with the trial court and, without citing Groh, did cite three other federal authorities addressing the issue and offered to provide the trial court with copies of the opinions. After hearing evidence and argument, the trial court continued the hearing for one week to allow counsel to provide copies of relevant authority. Trial counsel filed an affidavit averring he provided the trial court with some authority, but he did not recall if he did so on the record. The trial court's findings of fact include a finding that it was possible trial counsel provided the trial court with additional case authority. Based on the record, we conclude the trial court did not abuse its discretion in holding that appellant had not shown counsel was ineffective regarding the authorities cited and the copies of opinions furnished to the trial court. In a related argument, appellant contends trial counsel was ineffective in not raising an issue of the State's failure to comply with Texas Code of Criminal Procedure article 18.06(b), which requires the officer conducting a search to provide the owner of the place searched with a copy of the search warrant and an inventory of the property taken. See Tex. Code Crim. Proc. Ann. art. 18.06(b) (Vernon 2005). Appellant concedes that a mere technical violation of the statute, without a showing of harm, would not be sufficient to suppress the evidence. See Ashcroft v. State, 934 S.W.2d 727, 735 (Tex. App.-Corpus Christi 1996, pet. ref'd.) (failure to provide a copy of search warrant affidavit does not render search invalid absent some showing of prejudice or harm). As evidence of harm, however, appellant cites his giving police a post-arrest written statement in which he apologized to T.H. for sexually assaulting her. As the State points out, appellant made the incriminating statement in connection with his arrest for sexual assault. Nowhere is it alleged appellant made any incriminating remarks regarding his possession of child pornography. Moreover, when the prosecutor questioned Bradford about the statement, appellant successfully objected to the question on the ground the sexual assault allegation was "outside the scope of the search." Thus assuming, without deciding, that Bradford violated article 18.06 by leaving only a partial copy of the warrant and not the affidavit with appellant, we conclude appellant did not make the necessary showing of prejudice necessary to find ineffective assistance of counsel. Thirdly, appellant complains trial counsel was ineffective for failing to call him as a witness on his own behalf. Although appellant asserts, in both his application and his brief, that he would have testified and disputed Bradford's account, there is no evidence in the record supporting these assertions. Appellant did not file an affidavit in conjunction with his application. In the absence of evidence showing appellant wanted to testify and that his testimony would have be helpful to his case, we cannot conclude he has shown counsel was ineffective for failing to call him as a witness. See Salinas v. State, 163 S.W.3d 734, 740-41 (Tex. Crim. App. 2005) (no showing of ineffective assistance without evidence in the record supporting defendant's allegation in his brief that counsel failed to call him as a witness despite his assertion of his right to testify). Appellant also challenges trial counsel's performance at the plea hearing. Appellant contends he did not receive the admonishments required by article 26.13(a) of the code of criminal procedure. See generally Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 1, 1999 Tex. Gen. Laws 4831, 4831-32 (amended 2009) (current version at Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2009)). After appellant filed his brief, however, a supplemental clerk's record was filed showing appellant received a complete set of written admonishments as part of the plea papers he signed and he also received and signed a separate written admonishment detailing the requirement that he register as a sex offender. The trial court's written admonishments to appellant satisfy article 26.13 and thus afforded trial counsel no grounds for an objection. See id. at 26.13(d); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd.). Appellant next contends counsel was ineffective for not asserting his rights to be brought before a magistrate within forty-eight hours of arrest and to have an examining trial before indictment. See generally Tex. Code Crim. Proc. Ann. art. 16.01 (Vernon 2005); Act of May 24, 2001, 77th Leg., R.S., ch. 906, § 4, 2001 Tex. Gen. Laws 1800, 1801-02 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2009)). Appellant contends he was harmed by counsel's inaction because his "prolonged incarceration acted as a coercive measure on [appellant] who ultimately plead to the charge in the case at bar." Appellant contends an examining trial would have afforded him the opportunity to preview the State's case, confront his accusers, contest the State's probable cause to search, seize, and arrest, improve preparation for the suppression hearing, and aid his ability to make "an intelligent decision regarding any proffered plea bargains from the State." We reject appellant's contention that trial counsel's failure to insist on an earlier appearance before a magistrate somehow harmed him. Appellant was continuously incarcerated on the sexual assault charge, and the same trial counsel was ultimately appointed to represent him on both cases. There is no evidence in this record showing appellant experienced additional pressure to plead guilty for being incarcerated on two causes instead of one. Likewise, we cannot agree that the trial court abused its discretion in not concluding that counsel's failure to request an examining trial constituted ineffective assistance. In his affidavit, trial counsel averred that appellant was indicted before counsel could obtain an examining trial. The trial court found that appellant was indicted before counsel could request an examining trial and that examining trials in Dallas County have limited availability. Moreover, as the State points out, the record does not support appellant's claims of alleged harm and the benefits he would have supposedly obtained from an examining trial are purely speculative. At the suppression hearing, the State presented only one witness: a police officer who described an investigation that involved speaking to only one witness and acquiring physical evidence consisting of one videotape and some computer equipment. In view of this information, we cannot conclude that the State's case was sufficiently complex or obscure that an examining trial would have resulted in any material benefit to appellant. Appellant next contends trial counsel rendered ineffective assistance by failing to object to the State's failure to admit the arrest warrant as an exhibit during the suppression hearing. Bradford testified appellant was arrested pursuant to an arrest warrant separate from the search warrant. The State attached to its response to appellant's application for writ of habeas corpus a copy of an affidavit for arrest warrant or capias, dated July 20, 2004, requesting an arrest warrant for appellant on a charge of sexual assault. The trial court's findings include a finding that an affidavit for arrest warrant for the possession of child pornography dated January 31, 2005 is included within the trial court's file. The State alleges that because the existence of the arrest warrant is uncontroverted, there was no basis for trial counsel to object to the lack thereof. Appellant contends that if counsel had "objected to the lack of an arrest warrant or demanded that the warrant be produced and inspected, he would have discovered the apparent absence of this document." Appellant's assertion is speculative and contradicts the record. Therefore, we cannot conclude the trial court abused its discretion in not finding that the failure to demand proof of the arrest warrant for the sexual assault constituted ineffective assistance of counsel. In his final complaint against trial counsel, appellant complains that counsel failed to request findings of fact and conclusions of law from the trial court. Appellant contends, without any specificity, that counsel's failure harmed his right to appeal the trial court's ruling. In its findings on appellant's application, the trial court found that if findings had been requested, they would have supported the trial court's ruling and thus any benefit to appellant on appeal would be doubtful. On the basis of this record and the arguments given we cannot conclude that the trial court abused its discretion in denying appellant habeas relief on such speculative grounds. Having considered each of appellant's grounds for accusing trial counsel of providing ineffective assistance, we cannot conclude appellant presented to the trial court a showing that counsel's performance fell below an objective standard of reasonableness or that a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Accordingly, we further conclude appellant has not shown that the trial court erred in finding counsel did not render ineffective assistance of counsel in the trial court. See Kniatt, 206 S.W.3d at 664. We overrule appellant's first point of error. COMPLAINTS CONCERNING APPELLATE COUNSEL
Appellant first contends appellate counsel rendered ineffective assistance because counsel did not incorporate into appellant's brief three authorities appellant provided to him and used a fourth provided authority only sparingly. Appellant further contends counsel did not consult and confer with him about the brief as appellant requested. A review of appellant's brief shows counsel raised four issues on appeal. Appellant does not fault counsel's selection of issues to raise. Additionally, appellant does not disparage the authorities counsel cites in the brief. Rather, appellant charges counsel "failed to present [appellant's] search and seizure issue in its best possible light with case law provided by [appellant]." In an affidavit filed in response to appellant's application, appellate counsel averred he conducted "several lengthy conferences" with appellant about the case and also discussed the case with trial counsel. Appellate counsel averred he performed online legal research and cited the authorities that he believed "offered the strongest support" for appellant's issues. The trial court made a finding that "[a]ppellate counsel cited the cases he believed, in his professional experience, best addressed the issues to be raised on appeal." Counsel's brief raises the necessary issues and contains cogent argument on appellant's behalf with appropriate citations to authority. Thus, we cannot conclude the brief constitutes performance that falls below an objective standard of reasonableness. The fact that appellant and his habeas counsel would choose a different set of authorities to argue the issues raised does not show appellant received ineffective assistance of counsel. See Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992). Appellant further contends appellate counsel rendered ineffective assistance in connection with appellant's petition for discretionary review (PDR). Specifically, appellant complains the PDR filed was deficient in that it did not comply with rule of appellate procedure 68.4 describing the required contents of a PDR, referenced a phantom appendix, contained a superficial analysis, and contained proofreading errors. See Tex. R. App. P. 68.4. Appellant contends the PDR's statement regarding oral argument, although present, is insufficient. As the statement complies with rule 68.4(c), we disagree. Appellant's assertion that the PDR does not contain a statement of the date appellant's motion for new trial was filed, as required by rule 68.4(e), is incorrect. Although appellant correctly notes the PDR does not provide record citations alongside each ground of review, the argument immediately following the grounds contains numerous references to the record. Further, the proofreading mistakes appellant notes, such as referencing an appendix and misstating the date of "June 7, 2007" as "June 7, 207" simply do not, in our judgment, allow us to conclude the trial court erred in not concluding appellate counsel rendered ineffective assistance. And the fact that appellant's habeas counsel would have chosen to include a different and perhaps longer analysis of the issues does not show appellate counsel's performance was deficient. See Miniel, 831 S.W.2d at 325. It may in fact show the opposite. Finally, even if we were to assume that the alleged errors and deficiencies appellant complains of constitute such deficient performance as to satisfy the first prong of the Strickland standard, there is no showing on the record that a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 694. Appellant's contention that a better PDR might have caused the court of criminal appeals to grant appellant further review is mere speculation without foundation in the record. We conclude the trial court did not abuse its discretion in concluding that appellant received effective assistance of counsel on appeal. We overrule appellant's second point of error. We affirm the trial court's order.