Ansel Robert Linscott v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00054-CR
Ansel Robert LINSCOTT,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-0636
Honorable Pat Priest, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: March 14, 2007

 

AFFIRMED

 

Ansel Linscott was convicted of sexual assault, indecency by exposure, and two counts of indecency by contact and was sentenced to a total of forty-one years of imprisonment. On appeal, he argues that he was denied effective assistance of counsel because his attorney failed to adequately prepare for trial and failed to call both material and exculpatory witnesses during the guilt-innocence phase of the trial. We affirm the trial court's judgment.

Background

Linscott was charged with eight counts of sexual assault, four counts of indecency by contact, and two counts of indecency by exposure against a child, M.L., who was 21 at the time of the trial. He was also charged with four counts of indecency by contact and one count of indecency by exposure against another child, M.L.'s sister, C.B., who was 19 at the time of the trial. During a pretrial hearing, the trial judge granted Linscott's motion for severance of the cases and the State proceeded to trial on the fourteen counts involving M.L. Following a jury trial, Linscott was convicted of one count of sexual assault, two counts of indecency by contact, and one count of indecency by exposure.

After his conviction, Linscott filed a motion for new trial in which he complained he was denied effective assistance of counsel. After a hearing, the motion for new trial was denied and Linscott appealed to this court.

Discussion

The United States and Texas Constitutions guarantee the right to reasonably effective counsel. U.S. Const. amend. VI; Tex. Const. art I, 10. To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812.

On review, we give great deference to the counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). We look to the totality of the representation at trial, not to isolated acts or omissions of counsel in hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that the counsel's actions were the result of sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When addressing a counsel's duty to investigate the facts and interview or call potential witnesses, we must "conduct an objective review of [counsel's] performance, measured for 'reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time.'" Westerman v. State, No. PD-1314-05, 2006 WL 2694388 *4 (Tex. Crim. App. September 20, 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)).

Preparation for Trial

Linscott claims that he received ineffective assistance of counsel because his counsel, Lorraine Ellsworth, failed to adequately prepare for trial. In support of this claim, he testified at the motion for new trial hearing that Ellsworth spent no more than eight hours with him in preparation for the trial. However, the brevity of time spent in consultation with the defendant, standing alone, does not establish that counsel was ineffective. Plaag v. State, No. 08-99-00269-CR, 2000 WL 1476544 *7 (Tex. App.-El Paso Oct. 5, 2000, no pet.) (not designated for publication) (citing Jones v. Estelle, 622 F.2d 124, 127 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980)). Instead, we must consider whether counsel was adequately prepared for trial. Jones, 622 F.2d at 127. It is therefore not enough to show that Ellsworth met with Linscott for only eight hours before trial as long as she devoted a sufficient amount of time to the case to become thoroughly familiar with the relevant facts and applicable law to ensure that Linscott was provided an adequate defense. See Easter, 609 F.2d at 759.

The record from the motion for new trial reveals that Linscott's counsel was properly prepared. She testified that she "contacted numerous individuals...filed numerous motions...requested numerous subpoenas...spent hours researching various issues...spent hours pouring over CPS records." Regarding her contact with Linscott, Ellsworth testified that she had office and telephone conferences with him, talked with him while in court, and exchanged volumes of correspondence with him. Because the record reflects that Ellsworth devoted a sufficient amount of time to become thoroughly familiar with the relevant facts and law, thus ensuring Linscott an adequate defense, Linscott failed to prove that he was denied effective assistance of counsel based on his counsel's alleged failure to adequately prepare for trial. We overrule Linscott's first issue.

Failure to Call Witnesses

Linscott also argues that Ellsworth was ineffective because she failed to call witnesses during the guilt-innocence phase of the trial. A criminal defense lawyer has the responsibility to conduct a legal and factual investigation and to seek out and interview potential witnesses. Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). An appellant who complains about his trial counsel's failure to call witnesses must show that the witnesses were available and that he would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Rodd, 886 S.W.2d at 384. Generally, the decision to call a witness is a matter of trial strategy. Rodd, 886 S.W.2d at 384.

Linscott argues that even though he gave Ellsworth the names of several witnesses who could have provided exculpatory evidence, she did not call them during the guilt-innocence phase of the trial. These potential witnesses included his current wife, Cassandra Linscott, family friends Jamie English and Richard English, and several other witnesses who did not testify at the motion for new trial hearing. At the hearing on the motion for new trial, Ellsworth testified that she made a strategic decision not to call the above-referenced witnesses during the guilt-innocence phase of the trial because their potentially helpful testimony was interwoven with references to C.B., M.L.'s sister and Linscott's alleged second victim. Ellsworth testified she obtained an order from the trial court severing this case from the case against Linscott involving C.B. to prevent prejudice to her client when the jury heard testimony about multiple victims. Given this strategic decision, she did not want to call any witnesses who could inadvertently mention C.B. in their testimony and thus potentially allow the State to address C.B. in its case-in-chief.

Cassandra Linscott

At the hearing on the motion for new trial, Cassandra Linscott testified that she had been an available witness and could have offered exculpatory evidence during the guilt-innocence phase of the trial. She stated that she wanted to address the time she confronted M.L. about the abuse allegations and was prepared to testify about M.L.'s response to her questioning.

Ellsworth testified that she did not call Cassandra "because of the whole [C.B.] issue," explaining "I just didn't want that door opened, and - no, I just -- I just didn't think; that was risky."

 

Jamie English

Jamie English, a family friend, testified at the motion for new trial hearing and stated that she had been an available witness during the guilt-innocence phase of the trial. She testified that while she was having a conversation with Linscott, Jerrilyn, and M.L. concerning C.B., she directly asked M.L. whether Linscott had ever done anything inappropriate to her and M.L. replied that Linscott never had. Jamie English testified that this conversation was witnessed by her husband, Richard English, Linscott, and Jerrilyn.

Ellsworth testified that she would have had Jamie English testify if the trial had concerned both M.L. and C.B., however, since the relevant conversation included a reference to C.B., she did not want to risk the chance that Jamie might testify about C.B. and therefore she did not ask her to testify.

Richard English

Richard English testified at the motion for new trial that he was not called as a witness by Ellsworth even though he was available. He testified that he overheard the conversation between his wife, Jamie English, Linscott, Jerrilyn, and M.L. during which they discussed C.B. He stated that during this conversation, he heard M.L. state that her father had never touched her and that M.L. felt that C.B. was trying to pressure her into saying that he had touched her.

Ellsworth testified that she did not call Richard because the conversation alluded to C.B. Additionally, Ellsworth stated that M.L. testified that Jerrilyn and Linscott told her to deny the alleged abuse to anyone who asked. Ellsworth believed that because the statement in which M.L. denied the abuse occurred in the presence of Jerrilyn and Linscott, the State would reply that M.L. denied the abuse because she was talking with them.

Witnesses Who Did Not Testify at the Motion for New Trial Hearing

Linscott also complains that Ellsworth failed to call several other witnesses who may have offered exculpatory statements in the guilt-innocence stage of the trial. These witnesses included his neighbor, Alexsandra Lord, his friend, Eddie Esquivel, a family law attorney, Jim Monnig, and Sergeant Malone from the Live Oak Police Department.

Ellsworth testified that M.L. did make a statement to Sergeant Malone in which she denied Linscott's abuse. While Ellsworth admitted that this statement was potentially exculpatory, she testified she was concerned that if she called Sergeant Malone, he would mention C.B., who had originally initiated the investigation regarding M.L.

Regarding Esquivel and Lord, Ellsworth stated that they did not have direct knowledge of the alleged abuse and their testimony would not have had much impact on the case. Finally, when addressing her decision not to call Monnig as a witness, Ellsworth testified that while she may have originally considered calling him, as the trial progressed, she strategically decided that she did not need his testimony.

While Linscott demonstrated at the motion for new trial hearing that these witnesses were available to testify at the guilt-innocence phase of the trial, he did not overcome the presumption that his counsel's failure to call certain witnesses was a reasonable trial strategy and that if she had called the witnesses, the result of the proceeding would have been different. Additionally, Ellsworth's testimony at the motion for new trial hearing conveyed a sound trial strategy. The record indicates that Ellsworth made a reasonable factual investigation. She additionally sought out potential witnesses for Linscott's defense but eventually determined throughout the course of the trial that his defense would be better served if these witnesses did not testify. We therefore overrule his second issue.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

Catherine Stone, Justice

Do Not Publish