Opinion
NO. 14-16-00843-CR
02-08-2018
DENNIS ANTHONY WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1462169
MEMORANDUM OPINION
Appellant Dennis Anthony Williams pleaded guilty to aggravated sexual assault of a child without an agreed recommendation on sentencing but with a sentencing cap of twenty-five years. The trial court sentenced him to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a motion for new trial, alleging that his counsel was ineffective during the punishment phase of the proceedings. After an evidentiary hearing, the trial court denied his motion for new trial. On appeal, appellant asserts that the trial court erred in denying his motion for new trial by finding that the ineffectiveness of his counsel did not affect his punishment. Because we conclude appellant has not shown he was prejudiced by trial counsel's conduct appellant alleges was deficient, we affirm.
The trial court permitted appellant to appeal. See Tex. R. App. P. 25.2(a)(2)(B) (providing that in a case involving a plea bargain, a defendant must obtain the trial court's permission to appeal).
Background
A grand jury indicted appellant for the first-degree felony offense of aggravated sexual assault of a child under fourteen, which is subject to a range of punishment of five to ninety-nine years or life. Appellant pleaded guilty to the offense before the trial court, with no agreement on sentencing other than a twenty-five year cap on his sentence. Appellant acknowledged his guilt, and after the trial court admonished him, the court accepted his guilty plea. The trial court set the case for the preparation of a presentence investigation ("PSI") report and a sentencing hearing.
See Tex. Penal Code §§ 22.021 (defining aggravated sexual assault), 12.32 (first-degree felony punishment).
Before his sentencing hearing, appellant filed a pro se "Letter of Reconsideration Presentence Investigation Report to Withdraw Defendant's Plea," which the trial court treated as a motion to withdraw his plea. On the day of appellant's sentencing, his trial counsel, George Tennant, and his co-counsel, Dani Bradberry, moved to withdraw from appellant's case after discovering that appellant claimed that Tennant physically assaulted him to procure his guilty plea.
At the start of the punishment hearing, appellant stated he "had disagreements" with his lawyers, but denied that he had claimed Tennant assaulted him. Appellant advised the trial court that he wanted Tennant and Bradberry to remain on his case and that he wanted to proceed with the punishment hearing. The trial court clarified that appellant was withdrawing his motion to withdraw his guilty plea, and appellant agreed that he was. The trial court denied Tennant's and Bradberry's motion to withdraw as counsel and proceeded with the punishment hearing. Neither the State nor appellant offered any witnesses; the only evidence admitted was the PSI report.
In the PSI report, appellant reported to the investigator that he "didn't commit this offense," and that the offense report had been "fabricated." Appellant claimed that he pleaded guilty only because his attorney pressured him into entering the plea. The report summarized the facts of this offense, as well as the forensic interview of the complainant, T.N.W., conducted by the Children's Assessment Center (the "C.A.C.") shortly after the incident. T.N.W. was the daughter of appellant's former fiancée, with whom appellant lived at the time of at least some of the alleged offenses. The instant charge arose from an incident alleged to have occurred in December 2014, in which appellant touched T.N.W.'s vagina with his mouth while her mother was sleeping. When T.N.W.'s mother awoke, she entered the room and asked appellant what he was doing. Appellant denied doing anything. The mother questioned T.N.W. privately, and T.N.W. told her what appellant had done. T.N.W.'s mother and T.N.W. immediately left appellant's apartment, and T.N.W.'s mother contacted the police. Shortly after this incident occurred and during an interview at C.A.C., T.N.W., who was twelve years old at the time, described several other instances in which appellant sexually assaulted her, beginning when she was ten years old.
In addition to the C.A.C. interview, the PSI report also described an interview that the PSI investigator conducted with T.N.W. and her mother. At the time of this interview, T.N.W. was fourteen years old and attended middle school. T.N.W. and her mother discussed two instances in which T.N.W. attempted to take her life. The first attempt occurred when T.N.W. was ten years old. T.N.W. stated that her mother was in a relationship with appellant at that time. T.N.W. also stated that the first time appellant sexually assaulted her occurred when she was ten. The second attempt occurred about two years prior to the interview, when T.N.W. was twelve years old. As noted above, the sexual assault that resulted in the charges filed in this case occurred when T.N.W. was twelve. T.N.W. "emphatically" stated that appellant should go to jail for what he did. Similarly, T.N.W.'s mother "stated she did not know how she would be able to cope if the Court did not send the defendant to prison for a very long time."
Finally, the report described appellant's social history and noted that appellant has no prior record, including no juvenile record. It also described appellant's employment record, as well as noting that appellant had been married and divorced three times, and had three children. The report also documented appellant's family history.
Tennant urged during his closing argument that appellant was a "gainfully employed" contractor with no criminal history. He stated that appellant had "moved in with a girlfriend and a young lady [T.N.W.] who was troubled at the time." Tennant claimed that appellant "didn't know about the prior sexual trauma this poor young lady had endured and [appellant] was soon caught up in something that he was not equipped to deal with." Tennant insisted that appellant had taken "ownership" for the incident he caused, but downplayed this incident as "some petting and foreplay," with no "vaginal penetration by the sexual organ." According to Tennant, although appellant "owned up" to the incident, appellant later mistakenly listened to "some folks in jail who told him there was probably some other option," which presumably resulted in appellant's denial of the incident and claims during the PSI investigation that he had not committed the offense. Tennant described appellant as being remorseful for his actions, "[o]ther than the glip [sic] that happened over the last month or so." Tennant said that appellant did not regret getting caught, but regretted "being weak enough to be manipulated in his mind by a 13-year-old girl." Finally, Tennant emphasized that appellant's work did not require him to have contact with children and could be performed "easily" "while on sex offender role [sic]."
The record does not reflect the nature of thet alleged "prior sexual trauma" to which trial counsel referred.
The trial court questioned whether appellant had actually "taken ownership" of what he had done and asked whether appellant's defense was "that he felt like he was manipulated by this young girl." Tennant explained that appellant manipulated "himself" and had not been "warned about the potential powder keg he was walking into by the family." Tennant emphasized that appellant had withdrawn his motion to withdraw his guilty plea.
The State countered that appellant had not been manipulated, but instead was "caught up in his own depravity." According to the State, appellant had betrayed the trust of his fiancée and T.N.W. "in a way that is perhaps more cruel than any other way that you could imagine." The State explained that, despite Tennant's efforts to minimize what had occurred, this incident could not be described as "foreplay," which "is a word that you use when you're talking about a relationship between dating partners or married partners." The State further disagreed that appellant had taken responsibility for his actions and rather had only shown "a desire to look out for himself in this process." Finally, the State emphasized that although this offense was a first-degree felony, appellant had "been given a gift" with the sentencing cap. The State asked the trial court to sentence appellant to the full twenty-five years permitted by the sentencing cap agreement.
The trial court ruled as follows:
It appears from the Presentence Investigation Report after a plea of guilty was taken by the Court and the defendant was found guilty by the Court of the commission of this offense and this PSI was ordered, the defendant had an opportunity to exhibit some remorse to the probation officer that was taking the report, but instead, what I read in this Presentence Investigation Report is a man that still has a very defiant attitude, which belies the argument from counsel that he has some remorse for what he did. And from the Presentence Investigation Report it appears that this has been some continuous activity over a period of time. It was not an isolated event.[]The trial court signed a judgment to that effect the same day.
So based on that, the Court will assess the defendant's punishment at 25 years' confinement TDCJ, institutional division.
The record reflects that the State moved to consolidate for trial the present charges with charges in another proceeding alleging indecency with a child. The State contended that the charges in both proceedings were "pursuant to a common scheme or plan." The State also sought to cumulate appellant's sentences for the two alleged offenses. Tennant negotiated with the State and was able to obtain dismissal of the indecency charges.
Appellant timely filed a motion for new trial asserting his counsel was ineffective for failing to, as is relevant to this appeal: (1) independently investigate the offense; (2) contact potential punishment witnesses; and (3) attend the PSI interview with appellant. The trial court set appellant's motion for a hearing.
Appellant also alleged that his counsel was ineffective as to his guilty plea, but he abandoned that allegation at the start of the hearing on the motion.
At the hearing on appellant's motion, appellant presented the testimony of five character witnesses, including his sister, his brother-in-law, his sister-in-law, his ex-wife, and a stepdaughter. Each of these witnesses stated that they had known appellant for many years, that appellant was of good character, and that they would have testified to that effect at his punishment hearing. Further, these witnesses explained that appellant's trial counsel had not interviewed them for, or informed them of. the punishment hearing. Only one of these witnesses, appellant's brother-in-law, attended appellant's punishment hearing, but he was not called to testify.
On cross-examination, most of these witnesses agreed that they had not read the PSI report, watched the C.A.C. interview of the complainant, or seen any of the State's evidence against appellant. These witnesses uniformly testified that they would not hesitate to allow appellant to be around children. All of the witnesses testified that they believed appellant was innocent of the charges in this case, despite the fact that he pleaded guilty to this offense.
The State did not cross-examine appellant's stepdaughter.
Tennant and Bradberry testified at the motion for new trial hearing. Tennant described the contents of his case file for this offense; he stated it contained discovery such as medical reports, offense reports, layouts of the apartment where the offense occurred, and work schedules. Tennant acknowledged that appellant's file did not contain any witness statements, but explained that Tennant "would have to be able to talk to witnesses" and appellant "didn't want his family to know." Tennant also stated that he had not interviewed any potential punishment witnesses. Tennant testified that he "could not interview a punishment or mitigating witness[] in this case." He said that appellant's brother-in-law was the only person he had appellant's "permission" to talk to. Tennant declared that he could not bring any witnesses to corroborate his arguments during punishment "because I was told not to." According to Tennant, appellant prevented him from interviewing any witnesses because appellant did not "want anybody else involved, his family suffered enough." Tennant explained that appellant did not want any witnesses present "while he confessed." Bradberry confirmed that as she and Tennant prepared for trial, their direction changed "due to the wishes and issues" of appellant because appellant did not want them to discuss the details of the case with appellant's family members.
Tennant did not have his file with him, and he stated that before he could provide it to appellant, he would have to "redact some things" in it.
After hearing the evidence and argument of counsel, the trial court denied appellant's motion for new trial. Appellant timely noticed his appeal.
Analysis
Appellant contends his trial counsel was ineffective because counsel failed to: (1) investigate and prepare for appellant's sentencing hearing, including failing to call material defensive witnesses; (2) make a professional argument at the sentencing hearing; and (3) produce appellant's file for inspection prior to appearing in court. Appellant further contends alternatively that analysis of prejudice under Strickland v. Washington, 466 U.S. 668 (1984), either is unnecessary because his trial counsel's deficient performance is "presumptively prejudicial" or shows that counsel's ineffective representation prejudiced appellant.
A. Standard of Review and Applicable Law
We review appellant's challenge to the denial of his motion for new trial based on ineffective assistance under an abuse of discretion standard. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). Under this standard, we will reverse "only if the trial judge's opinion was clearly erroneous and arbitrary." Id. We view the evidence in the light most favorable to the trial court's ruling, not substituting our judgment for that of the trial court's and upholding the ruling if it is within the zone of reasonable disagreement. Id. When there are two permissible views of the evidence, the trial court's choice between them is not clearly erroneous. Id. Trial courts are in the best position to make credibility determinations and resolve conflicts in the evidence; a trial court may choose to believe or disbelieve all or any part of a witness's testimony. See Kobler v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999). And when, as here, the trial court does not issue findings of fact, we "imply findings necessary to support the ruling if they are reasonable and supported by the record." State v. Gutierrez, No. PD-0197-16, —S.W.3d—, 2017 WL 4675344, at *4 (Tex. Crim. App. Oct. 18, 2017).
To prevail on a claim of ineffective assistance of counsel, an appellant must prove that his trial counsel's performance was deficient and that he was prejudiced by the deficiency. See id. (citing Strickland, 466 U.S. at 687). Because there are "countless ways" to provide effective assistance, our judicial scrutiny of trial counsel's conduct is highly deferential. See id. at 862. Given the difficulty in evaluating trial counsel's performance, the defendant must overcome the presumption that "the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 100-01 (1955)).
If the appellant proves deficient assistance, he must also show that prejudice occurred with a probability "sufficient to undermine confidence in the outcome." See, e.g., Ex parte Rogers, 369 S.W.3d 858, 862-63 (Tex. Crim. App. 2012); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Regarding a complaint about trial counsel's performance during punishment, an appellant must show that a reasonable probability exists that the assessment of punishment would have been less severe in the absence of counsel's deficient performance. See, e.g., Rogers, 369 S.W.3d at 863-64. It is not enough to show that trial counsel's errors had some conceivable effect on the outcome of the punishment assessed. Strickland, 466 U.S. at 693. Appellant's complaints focus primarily on the failure of counsel to investigate and secure favorable defense witnesses. To evaluate prejudice in the context of a failure to investigate or present mitigating evidence, we "'reweigh the evidence in aggravation against the totality of available mitigating evidence.'" Straight v. State, 515 S.W.3d 553, 571 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing Wiggins v. Smith, 539 U.S. 510, 533 (2003)). We compare the evidence presented by the State with the evidence the trier of fact did not hear due to counsel's failure to investigate. Id. at 571. The likelihood of a more favorable outcome must be more than merely "pure conjecture and speculation." Ex parte Cash, 178 S.W.3d 816, 818-19 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 693).
An appellant bears the burden to establish both deficient performance and resulting prejudice by a preponderance of the evidence. Rogers, 369 S.W.3d at 862.
B. Lack of Prejudice
An appellant's failure to satisfy one prong of the Strickland test makes it unnecessary for a court to consider the other prong. See Strickland, 466 U.S. at 697; see also Jagaroo v. State, 180 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Accordingly, if we conclude that appellant has not met his burden to demonstrate prejudice even assuming deficient performance, we may dispose of the appeal solely on that ground without addressing Strickland's first prong. Strickland, 466 U.S. at 697. As we conclude the prejudice issue is dispositive of appellant's complaints, we address that issue assuming without deciding that appellant has shown counsel rendered deficient performance in the respects alleged in appellant's brief.
As discussed above, appellant confessed to committing the offense of aggravated sexual assault of a child under fourteen. This offense carries a sentence of five to ninety-nine years or life, but here appellant was subject to a maximum sentence of twenty-five years pursuant to his plea bargain agreement with the State. The PSI report revealed that T.N.W. twice attempted suicide at the ages of ten and twelve. Coincidentally, T.N.W. reported that the first time appellant sexually assaulted her occurred when she was ten, and the instant charges resulted from appellant's sexual assault of T.N.W. when she was twelve. The trial court assessed appellant's punishment at twenty-five years' confinement, highlighting both appellant's lack of remorse and the seriousness of the offense.
See Tex. Penal Code §§ 22.021 (defining aggravated sexual assault), 12.32 (first-degree felony punishment).
Upon review of the entire record, and reweighing the evidence in aggravation against the totality of available mitigating evidence, we conclude that appellant has not shown a reasonable probability that the assessment of punishment would have been less severe in the absence of counsel's deficient performance. See Rogers, 369 S.W.3d at 863-64. The character of the mitigating evidence appellant contends his counsel should have presented during the punishment phase could have damaged his case. All of the witnesses appellant presented at the hearing on his motion for new trial testified that they did not believe appellant had committed the offense. But appellant had already pleaded guilty to the charged offense. Both Tennant and Bradberry explained that such testimony by family members could have hurt appellant's case. See Robinson v. State, 514 S.W.3d 816, 824-25 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (noting that decision not to present particular witnesses at punishment may be "strategically sound" if testimony of witnesses may be harmful instead of helpful). Further, three of the witnesses testified that they would allow appellant to have unsupervised contact with children despite his admission of guilt. Such testimony likely would not have benefitted appellant. See id.
See Straight, 515 S.W.3d at 571.
Additionally, the trial judge who heard appellant's motion for new trial was the same trial judge who determined appellant's sentence. After hearing the evidence and argument of counsel at the hearing on appellant's motion for new trial, the trial judge stated:
I don't believe this case rises to [the level of ineffective assistance of counsel.]. It's certainly something that the appellate court can take a look at, but I'm considering the fact, number one, I don't think it would have made any difference. I heard the testimony and if I would have heard that testimony during the sentencing hearing, I don't think would my mind would have been changed at all because fully I would expect them to say that.(Emphasis added).
I expect -- I've been doing this a long time and I would expect family members to come in and talk about what a good person the family member is. So that was not anything that would have surprised me, had they been able to testify; and I don't think it would have made any difference to me. . . . Particularly, considering the seriousness of the offense which both of you have alluded to and what I would consider to be a generous plea bargain agreement that the defendant and Mr. Tennant entered into with [the prosecuting attorney].
Considering the entire record relevant to punishment, we cannot say that a reasonable factfinder would have given appellant a lesser sentence had it been presented with the evidence appellant claims his trial counsel erroneously failed to secure and present. See Straight, 515 S.W.3d at 571; Zia v. State, No. 05-15-00174-CR, 2016 WL 3575776, at *4 (Tex. App.—Dallas June 23, 2016, pet. ref'd) (mem. op., not designated for publication) (no ineffective assistance of counsel shown where trial court stated on the record at motion for new trial hearing that hearing appellant's character evidence would not lead to lesser sentence). Appellant's claims to the contrary are mere conjecture or speculation. See Strickland, 466 U.S. at 693 (defendant must show that counsel's errors had more some "conceivable effect" on the outcome of proceeding); Cash, 178 S.W.3d at 818-19 ("pure conjecture or speculation" that defendant may have received more favorable sentencing outcome does not establish prejudice under Strickland). The record does not show that prejudice occurred with a probability "sufficient to undermine confidence in the outcome." See Rogers, 369 S.W.3d at 862-63.
As to appellant's other allegations of ineffective assistance, i.e., that counsel failed to present professional argument at the punishment hearing and failed to produce the file, appellant has not shown that a reasonable probability exists that the assessment of punishment would have been less severe in the absence of counsel's deficient performance. See id. at 863.
Under the present circumstances, appellant has not established that he was prejudiced by his trial counsel's deficiencies, if any. Thus, we hold the trial court did not abuse its discretion in denying appellant's motion for new trial.
C. No Presumption of Prejudice
Appellant contends that counsel's deficient performance was so thorough that prejudice is presumed. "[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." United States v. Cronic, 466 U.S. 648, 659 (1984). In these rare cases, prejudice is legally presumed. See Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008).
We disagree that appellant "received virtually no assistance of counsel" such that the presumed prejudice doctrine applies. Appellant's trial counsel negotiated a plea-bargained punishment cap of twenty-five years on a first-degree felony charge of aggravated sexual assault of a child, which carries a maximum sentence of ninety-nine years or life. See Tex. Penal Code §§ 22.021 (defining aggravated sexual assault), 12.32 (first-degree felony punishment). Appellant's counsel convinced the State to dismiss a second charge—indecency with a child—which spared appellant the risk of consecutive sentences. See Tex. Penal Code § 3.03(b)(2)(A) (authorizing consecutive sentences for the offenses of aggravated sexual assault and indecency with a child). The record reflects that Tennant and Bradberry met with appellant after appellant pleaded guilty, and Tennant advised appellant on a strategy for the PSI interview. As counsel testified, they considered interviewing and securing mitigating testimony from family members for purposes of the punishment hearing, but were instructed by appellant not to involve family members. Finally, Tennant advocated for appellant in his argument to the trial court and objected to a portion of the State's argument.
In sum, appellant has not demonstrated that his trial counsel "entirely failed" to subject the prosecution's case to any meaningful adversarial testing such that prejudice is presumed. See State v. Frias, 511 S.W.3d 797, 810 (Tex. App.—El Paso 2016, pet. ref'd) (declining to apply Cannon presumption of prejudice despite "minimal" defense provided by trial counsel); Head v. State, 299 S.W.3d 414, 443 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd).
Conclusion
For the foregoing reasons, we overrule appellant's sole appellate issue and affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Christopher, Donovan, and Jewell. Do Not Publish — Tex. R. App. P. 47.2(b).