Opinion
NO. 14-16-00694-CR
02-06-2018
RODNEY JACKSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Cause No. 1472801
MEMORANDUM OPINION
Appellant Rodney Jackson challenges his conviction for murder, asserting he received ineffective assistance of counsel. Appellant did not file a motion for new trial and the record is silent as to trial counsel's strategy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant had a job working as a driver at the Houston branch of a distributing company. The complainant — the manager of all three of the company's branches — terminated appellant's employment because appellant had missed work without calling in to report he would be absent on at least two occasions. The complainant and the Houston-branch manager brought appellant into a conference room and told appellant they were terminating his employment. Appellant slammed the door, went outside to his vehicle, and retrieved two guns. He started to return to the office and saw the complainant and the Houston-branch manager, who had followed appellant to ensure appellant left the premises. Appellant asked if the complainant wanted to let appellant back inside. The complainant said that would not be necessary. Appellant then began shooting and shot the complainant.
The Houston-branch manager, who was standing a few steps behind the complainant, flung open the door, ran back inside the office and began yelling at employees to run from the front office. A warehouseman saw appellant climb into a company truck and flee the premises.
As the employees huddled in the back warehouse, several employees called 911. By the time police arrived on the scene, the complainant was dead.
Meanwhile, appellant kept driving. He eventually ran out of fuel in Fort Stockton, Texas. Appellant called a police officer and stated his intention to surrender to authorities. Appellant was taken into custody and charged with murder. Faretta Hearing
Appellant initially expressed a desire to represent himself, and the trial court conducted a Faretta hearing to determine whether appellant's waiver of counsel was knowing and voluntary. See Faretta v. California, 422 U.S. 806, 833-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). At the Faretta hearing, appellant stated that he had never been treated or diagnosed with any mental illness and that he desired to represent himself. The trial court allowed appellant to proceed pro se, and the trial court dismissed appellant's court-appointed counsel. Appellant represented himself for several months.
Competency Evaluation
Three days before his trial setting, appellant filed a pro se motion requesting an evaluation of his mental competency. In the motion, appellant wrote, "I heard voices [sic] are you going to let him handle you like that [sic] what are you going to do about that [sic] I get angry and hear voice [sic] I black out and lose memory when I get angry." The trial court granted appellant's motion and scheduled a competency evaluation. Appellant also filed a motion requesting that his court-appointed counsel be reinstated. The trial court also granted this motion.
The competency evaluation states that appellant had not received psychiatric treatment in jail or in the community. Appellant did not identify or describe any mental health history at his mental health assessment when he was admitted to jail in July 2015. In a routine mental health assessment later that month, appellant appeared coherent and denied hearing voices. Appellant never received mental health services while in jail.
The competency evaluation states that appellant's appearance was "good"—he had neat grooming and fair hygiene. According to the evaluation, appellant maintained eye contact and was cooperative, alert, and attentive throughout the evaluation. Appellant's responses were fluent and intelligible. Appellant had no record of any mental health diagnosis. When the evaluator asked appellant how appellant was functioning, appellant stated that he hears voices, but nobody believes him, so he does not discuss it. Appellant reported the auditory experiences began at age nine and occur only when he is upset or angry. Appellant stated that he was unsure if he was hearing hallucinatory voices or if the voices were his own inner dialogue or self-talk. When asked why he filed the motion for a competency evaluation, appellant told the evaluator that he wanted to see if he understood the legal system.
The mental health evaluation stated that mental health treatment was not indicated, but the evaluation also stated, without explanation, that appellant "did exhibit a mental illness and/or defect that is expected to last continuously for at least one year." Nothing else in the competency evaluation supports or explains the statement that appellant exhibited a mental illness or defect.
Trial
Appellant's case went to trial by jury a few months after the competency evaluation. At trial, several of appellant's former coworkers testified that after the complainant fired appellant, appellant shot the complainant and then fled the scene in a company vehicle. A medical examiner at the Harris County Institute of Forensic Sciences testified that the complainant suffered twenty-nine gunshot wounds and died as a result. The jury found appellant guilty as charged.
During the punishment phase, appellant intended to call a witness, but the witness did not want to testify. Trial counsel stated that appellant did not want the witness to testify if the witness did not want to testify, and the witness did not want to testify. During closing argument, trial counsel argued that appellant acted under the immediate influence of sudden passion. The jury assessed punishment at confinement for life and a $10,000 fine. Appellant did not file a motion for new trial.
ANALYSIS
In a single appellate issue, appellant asserts that trial counsel did not render effective assistance because, according to appellant, (1) evidence suggested appellant heard voices in his head and trial counsel did not request a sanity evaluation, (2) evidence suggested appellant had heard voices since age nine and trial counsel did not investigate appellant's medical and family history as to mental illness, and (3) during the punishment phase of trial, counsel did not introduce the evidence of mental illness described in appellant's competency evaluation.
To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Trial counsel's performance is not deficient if, with the benefit of hindsight, counsel's actions or omissions during trial were merely of questionable competence. See Prine v. State, No. PD-1180-16, 2017 WL 4168614 at *2 (Tex. Crim. App. Sept. 20, 2017). The defendant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the conduct constituted sound trial strategy. Id.
To defeat this presumption, any allegation of ineffectiveness must be firmly founded in the record, so that the record affirmatively demonstrates the alleged ineffectiveness. Id. Trial counsel generally should be given an opportunity to explain counsel's actions before a court finds counsel ineffective. Id. In the face of an undeveloped record, the court should find counsel ineffective only if counsel's conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The record on direct appeal generally does not suffice to show that counsel's performance was deficient. Prine, 2017 WL 4168614, at *2.
Alleged Failure to Investigate Medical and Family History
Appellant asserts trial counsel did not investigate appellant's medical and family history with respect to mental illness. The record does not reveal counsel's conversations with appellant or anyone else as to appellant's family history with respect to mental illness. Nor does the record reveal whether counsel investigated appellant's medical and family history as to mental illness. See Prine, 2017 WL 4168614, at *2 (noting that the record did not reveal attorney's knowledge relating to allegedly ineffective decision). We face a silent record as to whether trial counsel investigated appellant's family history with respect to mental illness. We lack a record of trial counsel's investigations, knowledge, or strategy. Appellant has not rebutted the presumption that counsel exercised reasonable professional judgment. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (refusing to speculate based on silent record regarding alleged failure to investigate witnesses); Edwards v. State, 280 S.W.3d 441, 445 (Tex. App.—Fort Worth 2009, pet. ref'd).
Failure to Request a Sanity Evaluation
Appellant asserts that trial counsel was ineffective in failing to request a sanity evaluation. Under Article 46C.101 of the Texas Code of Criminal Procedure, upon notice of the intention to raise the insanity defense, a trial court may appoint an expert to examine the defendant with regard to the issue of the insanity defense. Tex. Code Crim. Proc. Ann. art. 46C.101 (West, Westlaw through 2017 1st C.S.). Appellant contends that trial counsel's failure to request an evaluation constituted deficient performance because trial counsel was aware of appellant's statement that he heard voices and of the contents of appellant's competency evaluation. This record does not contain any explanation or reasoning for trial counsel's decision to not request a sanity evaluation. See Stafford v. State, 101 S.W.3d 611, 613 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (holding that finding counsel ineffective on a silent record for failing to request a sanity evaluation would call for speculation). On this silent record, we do not know what other information trial counsel may have possessed or how trial counsel strategically processed that information. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (noting that the "reasonableness of counsel's choices often involves facts that do not appear in the appellate record"). The competency evaluation noted, for example, that appellant stated the voices appellant claimed to have heard may have been appellant's own internal dialogue rather than delusional voices. Trial counsel also was aware that appellant fled the scene of the crime, an action from which a jury could infer consciousness of guilt. See Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007). We do not know what information trial counsel had or how he evaluated the potential benefits and drawbacks of requesting a sanity evaluation or how counsel weighed the various considerations that might have informed the decision. Without an explanation, we only could speculate as to trial counsel's reasons for not requesting a sanity evaluation, and we are not to engage in speculation. See Rylander, 101 S.W.3d at 110-11. On this record, counsel's conduct was not so outrageous that no competent attorney would have engaged in the same course of conduct. See id.
Failure to Introduce Evidence of Mental Illness
Appellant asserts that trial counsel rendered ineffective assistance because, during the punishment phase of trial, trial counsel did not offer into evidence appellant's mental health history contained in the competency evaluation. The competency evaluation recites appellant's statement that he heard voices and also appellant's concession that the voices might be his own inner-dialogue. Evidence of a significant inner-dialogue might have affected the jury's evaluation of counsel's punishment-phase argument that appellant deserved a lesser sentence because appellant acted in the heat of passion.
The record does not contain any evidence of trial counsel's impression of the evidence contained in the competency evaluation. See Prine, 2017 WL 4168614, at *2. The decision to offer evidence is a strategic one that requires courts to evaluate an attorney's explanations before concluding counsel was ineffective. See id. at *3; Edwards, 280 S.W.3d at 444-45. We lack counsel's explanation. Without a more fully developed record, we cannot conclude that trial counsel's decision not to offer evidence of appellant's mental health history contained in the competency evaluation amounted to ineffective assistance of counsel as a matter of law. See Prine, 2017 WL 4168614, at *3. Accordingly, we overrule appellant's ineffective-assistance challenge.
CONCLUSION
On this silent record, we cannot hold that trial counsel rendered ineffective assistance as a matter of law. Having overruled appellant's only challenge, we affirm the trial court's judgment.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Boyce and Jewell. Do Not Publish — TEX. R. APP. P. 47.2(b).