Hills, Willie v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed June 19, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00379-CR

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WILLIE HILLS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 872,165

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M E M O R A N D U M O P I N I O N

Willie Hills appeals a conviction for possession with intent to deliver cocaine on the ground that he was denied effective assistance of counsel during the punishment phase of trial. We affirm.

Appellant contends that his counsel was ineffective at the punishment phase by: (1) failing to investigate, contact, or call any of ten witnesses who would have testified favorably for appellant in mitigation of punishment (the mitigation witnesses ); (2) failing to have appellant s motion for community supervision sworn to; (3) failing to prove up appellant s eligibility for probation; and (4) electing to have the jury decide punishment after the trial court stated before trial that she was willing to grant appellant deferred adjudication. Because appellant presented his ineffective assistance claim to the trial court in a motion for rehearing, we are called upon to review the trial court s denial of that motion.

A trial court s denial of a motion for new trial is reviewed for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). It will be upheld if it is correct under any theory of the law. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). We review a trial court s determination of historical facts under a deferential standard, even where the determination is made from conflicting affidavits rather than live testimony. See Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002). Thus, where there is conflicting evidence on a motion for new trial, there is no abuse of discretion in overruling it. See Salazar, 38 S.W.3d at 148.

In order to establish ineffective assistance of counsel, an appellant must show that his counsel s performance was: (1) deficient, i.e., it fell below an objective standard of reasonableness; and (2) prejudicial, i.e., there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Williams v. Taylor, 529 U.S. 362, 390-91 (2000); Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003). Judicial scrutiny of counsel s performance must be highly deferential, eliminating the distorting effects of hindsight to evaluate the conduct from counsel s perspective at the time. Strickland v. Washington, 466 U.S. 668, 689 (1984). A defendant must also overcome a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id.

Ineffective assistance claims must be affirmatively demonstrated in the record. Bone v. State, 77 S.W.2d 828, 835 (Tex. Crim. App. 2002). To overcome the presumption that a challenged action or omission might be considered sound trial strategy, the record must ordinarily reflect the reasons why counsel took or failed to take the action. See Rylander, 101 S.W.3d at 110-11.

In this case, appellant s brief concedes that he was not prejudiced by his counsel s failures to have his motion for community supervision sworn to and to prove up his eligibility for probation because the trial court allowed him a probation charge (despite the unsworn motion) and the prosecutor proved up his eligibility for probation. Similarly, regarding the decision to have punishment be decided by the jury rather than the trial court, appellant has provided no record of counsel s reasons for this decision and cited no authority holding that such a decision falls outside the presumption of trial strategy or that we can view it with the hindsight of the jury s decision. Nor is there any evidence that the trial court would have been any more lenient than the jury after hearing the trial and punishment evidence. Therefore, appellant has not demonstrated ineffective assistance as to these matters.

In support of his ineffectiveness claim regarding the failure to investigate and call the mitigation witnesses, appellant relies on affidavits of those witnesses presented with his motion for rehearing. However, the affidavit of appellant s counsel states that appellant had not wanted anyone to participate in his trial and that appellant had refused to give his counsel the names of any witnesses who might assist him. Although appellant s affidavit controverts this, there can be no abuse of discretion in denying a motion for new trial based on conflicting evidence. See Salazar, 38 S.W.3d at 148. In that appellant has cited no authority finding ineffective assistance on a matter on which a defendant refused to cooperate with his attorney, he has failed to demonstrate ineffective assistance on the alleged failure to investigate and call the mitigation witnesses. Accordingly, his sole issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed June 19, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish Tex. R. App. P. 47.2(b).