Anthony Autrie Bell v. The State of Texas--Appeal from County Court at Law No 1 of Fort Bend County

Opinion issued June 23, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00814-CR

NO. 01-04-00815-CR

____________

ANTHONY AUTRIE BELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1

Fort Bend County, Texas

Trial Court Cause No. 86044A

MEMORANDUM OPINION

In one case, under two separate counts, a jury found appellant, Anthony Autrie Bell, guilty of the offenses of resisting arrest // and evading arrest, // and the trial court assessed his punishment at confinement for 180 days and a fine of $300. The trial court suspended the imposition of the sentence and placed appellant on community supervision. In two points of error, appellant contends that his trial counsel rendered ineffective assistance. We affirm.

Factual Background

Shirley Douglas testified that, on May 19, 1999, at about 7:00 p.m., she saw appellant, who lived across the street from Douglas, and about eight 16- to 18-year-old persons running into her yard while playing basketball in the street in front of her house. When she asked the group not to come into her yard, appellant started cursing her out, called her a bitch and a whore, and was being loud. Two law enforcement officers, who were dressed in uniforms, arrived in a marked patrol car after Douglas called the police department. Douglas told Houston Police Officer R. Morales what had occurred, and, after pointing out appellant, Morales approached appellant, who accompanied Morales to the patrol car. Douglas saw that [t]he officer was trying to talk to [appellant], and [appellant] was being disrespectful towards the officer and was cursing. Morales, without handcuffing appellant, placed appellant in the patrol car. After Morales obtained more information from Douglas, Morales returned to the patrol car, removed appellant from the backseat, and asked him to place his hands behind his back in order to handcuff appellant. However, appellant turned around, pushed Morales with his elbow, and ran away into a nearby wooded area. She also saw either or both Morales or Houston Police Officer S. Childers run after appellant. Douglas heard Morales tell appellant that appellant was under arrest and also heard both officers yell for appellant to stop.

Officer Morales testified that, when he and Officer Childers were dispatched to Douglas s house, he saw six to eight males congregating in the street near Douglas s house. After speaking with Douglas regarding the incident, he approached appellant, who was standing in his own driveway across the street. Morales then asked appellant to walk with him to the patrol car to obtain appellant s statement. Morales performed a weapons search on appellant and placed him in the backseat of the patrol car, but Morales told appellant that he was not under arrest at that time. After determining from Douglas s statement that he had enough information to arrest appellant for abusive language and disorderly conduct, Morales returned to the patrol car. Morales advised appellant that he was under arrest, removed him from the backseat, and asked him to place his hands on the patrol car s trunk. As Morales was reaching for appellant s arm in order to handcuff appellant, appellant turned around and pushed Morales with his elbow, which caused Morales to fall to the ground. Appellant ran into an empty field at the end of the street, and Morales told appellant to stop. Morales then got into his patrol car and attempted to follow appellant in the car, while Officer Childers attempted to follow appellant on foot. Neither officer was able to capture appellant.

In his defense, appellant called Teresa Jernigan, appellant s mother, and Eric Bundage, Shonn Campbell, and Bryan Hightower, appellant s long-time friends. Jernigan testified that, on May 19, 1999, she was preparing for appellant s high school graduation celebration. When she was inside her house, she heard appellant and Douglas arguing outside and heard Douglas say to appellant, [s]tupid M.F. Jernigan called the police department, but she explained that she was confused when the police officers first approached Douglas s house because Jernigan had contacted the police department. Jernigan saw one of the officers speak with both Douglas and appellant and then saw the officer handcuff and place appellant in the back seat of the patrol car. However, Jernigan explained that, at that point, she went back inside her house to call the police again and did not see any more of the incident.

Bundage, Campbell, and Hightower testified that, as they were walking down a street near appellant s house, they saw two police officers and a patrol car parked in front of appellant s driveway. They saw the officers let appellant, who was not wearing handcuffs, out of the patrol car and saw appellant then walk inside his house. Campbell also testified that he actually saw an officer place appellant in the backseat and then let appellant out of the backseat. Campbell further testified that he was not exactly sure of the date that he saw appellant in the patrol car. Bundage and Hightower also agreed that they were never closer than 75 to 100 feet from appellant and the officers.

Appellant testified that, on May 19, 1999, he, his family, and friends were celebrating his high school graduation. His brother and Derek Pasey, a friend, were playing basketball outside, and appellant was standing inside his garage when he heard someone say, M.F. Appellant explained that he first thought his brother or Derek had said, M.F., but he then heard Douglas, who was sitting in her own yard and watering her grass say, M.F., again. Appellant further explained that, in response, he told her, You M.F. My momma didn t name me or my brother no M.F. Jernigan came outside from the house when he heard appellant say, M.F., and, when Douglas yelled at Jernigan, Jernigan went back inside the house to call the police department. About 30 minutes later, two police officers arrived in a patrol car and first went to Douglas s house. Then, the police officers drove to appellant s house. After asking for identification from appellant, his brother, and Pasey, one of the officers asked appellant for his statement. The officer then escorted appellant to the patrol car, handcuffed him, and placed him in the backseat while the officer determined whether appellant had any outstanding warrants. Thereafter, the officer removed the handcuffs and told appellant that he was free to leave. Appellant then went back inside his house.

Appellant further testified that only he, his brother, and Pasey were present when the police officers arrived and that Officer Morales never told appellant that he was being placed under arrest. He stated that he first discovered that he had an outstanding warrant for his arrest for the offenses of evading and resisting arrest when a fire academy to which he had applied had conducted a background check.

Ineffective Assistance

In two points of error, appellant argues that his trial counsel rendered ineffective assistance because his counsel failed to call key witnesses to testify and failed to return his calls or meet with [him] until two hours prior to the trial.

To prevail on a claim of ineffective assistance of counsel, a defendant must prove, by a preponderance of the evidence, that (1) his counsel s representation fell below an objective standard of professional norms and that, (2) but for counsel s errors, there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); McKinny v. State, 76 S.W.3d 463, 470 (Tex. App. Houston [1st Dist.] 2002, no pet.). An appellant must satisfy both prongs of the Strickland test or the claim of ineffective assistance will fail. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Our review of counsel s representation is highly deferential and presumes that counsel s actions fell within the wide range of reasonable and professional assistance. Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002); McKinny, 76 S.W.3d at 470.

A Strickland claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Thompson, 9 S.W.3d at 813; McKinny, 76 S.W.3d at 470. When faced with a silent record as to counsel s strategy, we will not speculate as to counsel s tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. Thompson, 9 S.W.3d at 813; McKinny, 76 S.W.3d at 470. However, a single egregious error of omission or commission by counsel has been held to constitute ineffective assistance, even in the absence of a record setting forth counsel s reasons for the challenged conduct.Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App. 1992) (per curiam); McKinny, 76 S.W.3d at 470-71. In the rare case where the record on direct appeal is sufficient to prove counsel s performance was deficient, an appellate court should address the claim. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000); McKinny, 76 S.W.3d at 471. In the absence of evidence of counsel s reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 440; McKinny, 76 S.W.3d at 471.

In his first point of error, appellant argues that his counsel rendered ineffective assistance because his counsel failed to call two key witnesses. Appellant notes that, (1) although appellant s counsel did call four witnesses to testify on appellant s behalf, [t]hese witnesses were not at the scene, but testified that they merely saw portions of this incident from a distance ; (2) Officer Morales testified that there were approximately six to eight males that were playing basketball with [appellant] at the time of the alleged offense ; (3) appellant, during his trial testimony, specifically mentioned that his brother, John Dennis, and a friend, Derek Pasey, were at the scene with appellant and had been id d [sic] by the officers ; (4) the four witnesses who testified on appellant s behalf were [not] actually with [appellant] at the time of the alleged offense ; and (5) [t]here were no witnesses called for the defense that [sic] were actually at the scene.

We note that the failure to call particular witnesses during trial will not be considered deficient performance of counsel absent a showing that such witnesses were available and that the defendant would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Rodd v. State, 886 S.W.2d 381, 384 (Tex. App. Houston [1st Dist.] 1994, pet. ref d). The decision to call a witness is generally a matter of trial strategy. Rodd, 886 S.W.2d at 384.

Here, appellant has failed to introduce any evidence that John Dennis and Derek Pasey were available or that appellant s defense would have benefitted from the witnesses testimony. Id. Therefore, we cannot conclude that appellant s counsel was deficient in failing to produce Dennis s and Pasey s testimony. Accordingly, we hold that appellant has not proved his claim of ineffective assistance by a preponderance of the evidence in this regard.

We overrule appellant s first point of error.

In his second point of error, appellant argues that his counsel rendered ineffective assistance because his counsel failed to return his calls and did not meet with [him] until two hours prior to the trial. Appellant also notes that his counsel failed to meet with [him] to prepare for trial.

Here, appellant has not demonstrated with evidence that is firmly founded in the record or affirmatively demonstrates that appellant s counsel first contacted appellant two hours before the commencement of trial, that his counsel failed to return appellant s telephone calls, or that his counsel failed to adequately prepare appellant for trial. Furthermore, although appellant filed a motion for new trial, he asserted in his motion only that the verdict in this cause is contrary to the law and the evidence, and, moreover, there is no evidence in the record that the trial court ruled on appellant s motion. Therefore, based on the record before us, we cannot conclude that counsel s performance was deficient concerning the challenged grounds. Furthermore, in regard to the grounds asserted in his second point of error, appellant has not demonstrated that, but for counsel s performance, there was a reasonable probability that the outcome of the trial would be different. An appellant must satisfy both prongs of the Strickland test or the claim of ineffective assistance will fail. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Garcia, 57 S.W.3d at 440. Accordingly, we hold that appellant has not demonstrated that his trial counsel rendered ineffective assistance by a preponderance of the evidence in this regard.

We overrule appellant s second point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

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