RANDY GLENN HINSHAW, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 7, 2010.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01235-CR
No. 05-08-01236-CR
............................
RANDY GLENN HINSHAW, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F07-40812-N, F07-40813-N
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OPINION
Before Justices Moseley, Bridges, and Murphy
Opinion By Justice Moseley
        A jury convicted Randy Glenn Hinshaw of two counts of aggravated robbery with a deadly weapon, enhanced by two prior felonies. The jury assessed punishment at life in prison in both cases. Hinshaw filed a motion for new trial based on ineffective assistance of counsel. Following a hearing, the trial court denied the motion. In two points of error, Hinshaw contends his trial counsel was ineffective for failing to present evidence supporting a defense of involuntary intoxication and for failing to present character evidence during the punishment phase of the trial. We affirm the trial court's judgments.
 
BACKGROUND FACTS
        Hinshaw was indicted for the aggravated robbery of Frank and Fernanda Ybarbo. The Ybarbos and their small child were going home from the swimming pool and stopped by Frank's father's house. They found Hinshaw inside the house holding a knife. Hinshaw said he did not want any trouble, but asked them for their cell phones and wallets. Hinshaw asked several times if the police were outside. Frank told Hinshaw to take their swim-bag because it had their wallets, phones, and a digital camera. Hinshaw took the bag, then told Frank to tear the telephone off the wall and Frank did so. Hinshaw took the keys to Frank's vehicle and left.
        About ten hours after the robbery, Hinshaw was found asleep in the stolen vehicle. The arresting officer testified Hinshaw appeared disoriented and “very sleepy like he might have been under the influence of something.”
        At trial Hinshaw testified he was a drug addict and had an extensive criminal history. He had served time in the penitentiary four times, for burglaries, credit card abuse, and, most recently, possession of a controlled substance. On the day of the robbery, he needed money to bail his girlfriend out of jail on a drug possession charge. He went to Stephanie Henson, a woman who sold the drugs to his girlfriend, to try to get the money. They talked and Henson agreed to give him some money. She also gave him iced tea in a jar to take with him on the road. Hinshaw was on his way to the hardware store, and told Henson he would come back later and get the money. After he got the iced tea, Hinshaw was scared, paranoid, and felt like he was running from police. He could not remember how he got from the hardware store to the house where the robbery occurred. He remembered going into the bathroom of the house, but was disoriented and did not know what he was doing. He saw Fernanda come into the bedroom and put the child on the bed. He remembered confronting Fernanda, but did not remember holding a knife. He also remembered Frank gave him the swim-bag and that he drove away in Frank's vehicle. He remembered opening the bag after he drove to Arlington, but he was disoriented and the next thing he knew, he “was in Terrell asleep, asleep in the truck.”
        During the punishment phase of trial, the State called the fifteen-year-old neighbor who testified she was home alone on the day of the offense when Hinshaw tried to break down the door of her house. She was scared and called police.
        Hinshaw filed a motion for new trial asserting ineffective assistance of counsel. He asserted counsel was deficient by failing to call Henson as a witness in support of his affirmative defense of involuntary intoxication at the guilt-innocence stage, and by failing to call his family members and his parole officer to testify as to his character at the punishment stage.
        At the hearing on Hinshaw's motion for new trial, his trial counsel testified that he did not plan to call Henson as a witness because she was incarcerated and would likely refuse to testify, invoking her Fifth Amendment right against self-incrimination. He did not believe it would be proper to call a witness he expected would invoke her rights against self-incrimination. His file contained bench warrants for Henson, but he could not locate her because Hinshaw did not give him the correct spelling of her name. Trial counsel testified that Hinshaw did not provide him with names of family members who were available and willing to testify as character witnesses.
        Hinshaw's sister testified at the new trial hearing that trial counsel did not contact her or other family members about testifying at trial. She brought three written statements from family members asserting Hinshaw's good character. She said she had never seen her brother use drugs, that he was a hard worker, and he did not have any other legal problems at the time of the offense.
        Hinshaw testified that he told his attorney his family could vouch for him. He gave his trial counsel the correct spelling of Henson's name, and said his parole officer could have testified that Hinshaw had been “clean” from drugs for four years and was a hard worker. The parole officer did not testify at the motion for new trial hearing.
APPLICABLE LAW AND STANDARD OF REVIEW
 
        Courts review a claim of ineffective assistance of counsel under well-established standards. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant must show by a preponderance of the evidence that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland, 466 U.S. at 687-88; Bone, 77 S.W.3d at 833; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. That another attorney might have pursued a different course of action does not necessarily indicate ineffective assistance. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).
        Because the trial court ruled on appellant's ineffective assistance claim by denying his motion for new trial after a hearing, we review his claim under an abuse of discretion standard. See State v. Gill, 967 S.W.2d 540, 542 (Tex. App.-Austin 1998, pet. ref'd). We determine whether the trial court's decision on the ineffective assistance claim and denial of the motion for new trial was clearly wrong and outside the zone of reasonable disagreement; we do not substitute our judgment for that of the trial court. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
ANALYSIS
 
        Hinshaw argues his trial counsel failed to present evidence raising the involuntary intoxication defense. However, evidence raising this defense was admitted through Hinshaw's trial testimony and the arresting officer's testimony about Hinshaw's appearance when he was arrested. The trial court instructed the jury on the affirmative defense of involuntary intoxication. See Mendenhall v. State, 77 S.W.3d 815, 817-18 (Tex. Crim. App. 2002) (it is an affirmative defense to prosecution that, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong).
        Because Henson did not testify at the hearing on the motion for new trial, there is nothing in the record from which to conclude that she would have testified at trial if called, or what that testimony might have been. Even if Henson's potential testimony might have supported the first requirement of the involuntary intoxication defense (that the defendant did not exercise independent judgment or volition in taking an intoxicant), her testimony would have added nothing to the requirement that the defendant show he did not know his conduct was wrong as a result of the serious mental defect imposed by the involuntary intoxication. Thus, the trial court could have reasonably concluded that Henson's testimony would have had little impact on the outcome of the trial.
        Hinshaw also argues his trial counsel failed to present good character evidence at the punishment phase of trial. He argues trial counsel should have investigated and called his family members and his parole officer to testify. A claim of ineffective assistance based on trial counsel's failure to call a witness cannot succeed absent a showing that the witness was available to testify and that the witness's testimony would have benefitted the defense. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007).
        The evidence at the new trial hearing was conflicting about whether Hinshaw told his trial counsel his family members and parole officer were available and willing to testify as character witnesses. Although Hinshaw's sister testified at the new trial hearing, she testified only that trial counsel did not contact her or other family members about testifying at trial; she did not clearly indicate whether the family would have been available to testify at trial.
        Hinshaw testified that his parole officer could have testified that Hinshaw had been “clean” from drugs for four years and was a hard worker. However, the parole officer did not testify at the new trial hearing and there is nothing in the record indicating he was available to testify at the trial.
        Hinshaw admitted he was a drug addict and had a long criminal history, including convictions for burglary, unlawful possession of a forged instrument, credit card abuse, and possession of a controlled substance. In light of Hinshaw's admitted drug use and prior felony convictions, and the evidence he tried to break into another nearby house shortly before the offense, the trial court could have reasonably concluded the testimony of family members or the parole officer, even if they were available to testify, would have had little impact on the outcome of the punishment hearing.
        The trial court concluded Hinshaw did not meet his burden of proving by a preponderance of the evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 813. After reviewing the record, we conclude Hinshaw has not shown the trial court abused its discretion by denying the motion for new trial. We overrule both points of error.
        We affirm the trial court's judgments.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47.2(b)
081235F.U05