Torreanno Shawn Smith v. The State of Texas--Appeal from 248th District Court of Harris County

Opinion issued July 14, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00458-CR

TORREANO SHAWN SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 892957

MEMORANDUM OPINION

Appellant, Torreano Shawn Smith, pleaded guilty, with an agreed punishment recommendation, to an indictment charging aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. 22.02(a)(2) (Vernon Supp. 2004-2005). The trial court deferred adjudication of guilt and placed appellant on community supervision for five years.

The State later filed a motion to adjudicate guilt, alleging that appellant had violated the terms and conditions of community supervision by, among other things, assaulting his wife. Appellant pleaded not true to the allegations. The trial court found the assault allegation to be true, adjudicated appellant guilty of aggravated assault with a deadly weapon, and assessed appellant s punishment at three years in prison.

In considering appellant s sole issue, we determine whether trial counsel rendered ineffective assistance during the punishment phase of the adjudication hearing by (1) failing to present mitigating evidence, except for a brief statement by appellant, and (2) demonstrating inadequate knowledge of the law in requesting that appellant s community supervision be modified from deferred adjudication community supervision to straight community supervision, when appellant was not eligible for the latter. We overrule the appellant s sole issue and affirm the trial court s judgment.

Standard of Review

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying Strickland standard at punishment phase of non-capital trial). Appellant must show both that (1) counsel s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel s error or omission, the result of the proceedings would have been different, i.e., the error or omission is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813.

It is the defendant s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Id. A [d]efendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). We normally will not speculate to find trial counsel ineffective when the record is silent on counsel s reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex. App. Houston [1st Dist.] 2000, pet. ref d); Gamble, 916 S.W.2d at 93. However, in the rare case where the record on direct appeal is sufficient to prove that counsel s performance was deficient, an appellate court should obviously address the claim . . . . Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

Failure to Present Mitigating Evidence

Appellant first argues that his counsel was ineffective for presenting only his short statement without any mitigating evidence during the punishment phase of adjudication. // See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001) (indicating that defendant may appeal ineffective assistance of counsel at punishment phase of adjudication proceeding). Appellant asserts that there were witnesses available specifically, his brother, sister, and wife who would have testified favorably in mitigation. Although these witnesses had already testified at the adjudication portion of the hearing, as had appellant, the record is silent as to whether they were still available for the punishment portion and whether, if they were still available, they would have provided punishment testimony favorable to appellant. Similarly, the record does not show whether counsel investigated mitigation issues, whether he considered the testimony that appellant now claims that these witnesses could have provided, and, if so, whether counsel had reasons for not calling them to testify again. Indeed, what the record does show is that, at the close of the earlier adjudication phase, the trial court had expressly stated that a police officer s testimony was the only credible testimony that I have heard and thus indicated that the court had found the initial testimony of appellant s family not to be credible.

We decline to hold that counsel was deficient when nothing shows whether the witnesses were still available to testify at punishment; to what, if anything, they would have testified; whether counsel investigated possible mitigating evidence; or what counsel s reasons were for not presenting mitigating evidence, especially given the trial court s just having expressed its disbelief of appellant s family members testimony at the adjudication phase. See Lumpkin v. State, 129 S.W.3d 659, 665 (Tex. App. Houston [1st Dist.] 2004, pet. ref d) (refusing to speculate as to reasons that trial counsel did not call witnesses to testify at punishment stage, when nothing showed counsel s strategy or that witnesses would have presented beneficial testimony). //

Accordingly, we hold that appellant has failed to overcome the presumption that, under the circumstances, counsel s failure to present mitigating evidence at the punishment phase might have been sound trial strategy. See Gamble, 916 S.W.2d at 93. This case simply does not present one of those rare situations in which a record that is silent on counsel s strategy nonetheless sufficiently proves deficient performance. See Robinson, 16 S.W.3d at 813 n.7.

Moreover, even if the record showed that counsel was deficient, nothing shows the required prejudice. First, the trial court expressly stated that it was taking into account, for purposes of punishment, the fact that appellant had attended anger-management and domestic-violence classes. Second, counsel asked the court to assess the minimum punishment, and the court assessed three years out of a range of two to 20 years. // See Tex. Pen. Code Ann. 12.33(a), 22.02(a)(2) (Vernon 2003 & Supp. 2004-2005).Inadequate Knowledge of the Law

Appellant also argues that trial counsel demonstrated inadequate knowledge of the law when he requested that the court modify appellant s community supervision from deferred adjudication community supervision to regular community supervision, when appellant was not eligible for the latter. Nothing in the record indicates that the there is a reasonable probability that, but for counsel s alleged error, the result of the proceedings would have been different. After counsel s complained-of request, the trial court reminded counsel that deferred is the only type of probation the Court can give, and counsel then asked for the minimum punishment. The trial court then gave a three-year sentence when the punishment range was two to 20 years. See Tex. Pen. Code Ann. 12.33(a), 22.02(a)(2). There is no indication that the cited error had any effect at all.

Conclusion

We overrule appellant s sole issue.

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).