Malcolm Bryant v. The State of Texas--Appeal from 338th District Court of Harris County

Opinion issued June 23, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00937-CR

MALCOLM BRYANT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 974363

MEMORANDUM OPINIONAppellant, Malcolm Bryant, pleaded not guilty to the felony offense of burglary of a habitation. The jury found him guilty and found that he used or exhibited a deadly weapon, namely, a knife, during the burglary. The jury assessed punishment at 30 years in prison. Appellant s sole point of error on appeal is that he received ineffective assistance of counsel. We affirm.

BACKGROUND

Jennifer Can, the complainant, testified that she and appellant lived together as common-law husband and wife until she told him to move out in October 2003. Can testified that, on November 25, 2003, appellant broke into her home through her bedroom window at approximately 3:00 a.m., kicked and beat her, and used a butcher knife from her kitchen to stab her in the back as she was trying to unlock her front door to escape.

After appellant s conviction, the trial court appointed new counsel. His new counsel filed a motion for new trial claiming appellant s trial counsel was ineffective. Appellant s mother was the only witness at the hearing on that motion. DISCUSSION

In one point of error, appellant claims that his attorney at trial provided ineffective assistance of counsel because he failed to present a defense . . . despite his promise to the jury during [his] opening statement that he would provide evidence of self-defense.

Contrary to appellant s assertions, the record shows that his trial counsel told the jury that he would present evidence of accident and not evidence of self-defense. Appellant asserts in his brief that his trial counsel did not present an alternative version of [the] events. That assertion is without merit. The record also shows that, throughout the trial, his trial counsel aggressively promoted a theory of accident as an alternative version of [the] events. In his argument on this point of error, appellant also contends that his trial counsel did not offer into evidence documents regarding appellant s mental illness or mental incapacity. We cannot consider this argument on appeal because the mental health documents appellant contends should have been offered into evidence at trial were not offered into evidence at the motion for new trial and are not part of the record before us. Appellant also argues that his trial counsel did not interview or call several unidentified witnesses. We also do not consider this argument because there is no evidence to show that these unnamed witnesses were available at the time of trial or that their testimony would have benefitted appellant. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); see also Lumpkin v. State, 129 S.W.3d 659, 665 (Tex. App. Houston [1st Dist.] 2004, pet. ref d).

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Our review of appellant s trial counsel s performance must be highly deferential. Strickland, 466 U.S. at 690, 104 S. Ct. at 2065. We determine the reasonableness of counsel s challenged conduct in context and view it as of the time of counsel s conduct. Id. We are to assume a strategic motive if any can be imagined and find counsel s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Bone, 77 S.W.3d at 833 n.13. The policy behind this assumption is that [i]ntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

Appellant has not overcome the strong presumption that his counsel s conduct falls within a wide range of reasonable professional assistance and might be considered sound trial strategy. See Bone, 77 S.W.3d at 836. To find that appellant s counsel was ineffective based on the stated grounds would call for speculation, in which we will not engage. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); see also Lumpkin, 129 S.W.3d at 665.

We overrule appellant s sole point of error.

CONCLUSION

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

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