Kenneth Ray Pool v. The State of Texas--Appeal from 339th District Court of Harris County

Opinion issued January 31, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00349-CR

____________

KENNETH RAY POOL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1077747

MEMORANDUM OPINION

A jury found appellant, Kenneth Ray Pool, guilty of the offense of aggravated robbery (1) and assessed his punishment at confinement for thirty years. In three issues, appellant contends that (1) the evidence is legally and factually insufficient to support his conviction, (2) he received ineffective assistance of counsel during the punishment phase of trial, and (3) the trial court erred in denying his motion for new trial.

We affirm.

Factual and Procedural Background

Angela Geisler, a hair stylist at the Cut-Away Salon in Pasadena, testified that on July 20, 2006, at approximately noon, she was giving the complainant, Margaret Jones, a haircut when appellant, wearing black sunglasses and an orange, plastic hard hat, entered the salon and took two purses, including one of which belonged to the complainant. Geisler attempted to retrieve the purses from appellant, but appellant then brandished a revolver and stated, "I have a [revolver]." Appellant "waved" the revolver around before fleeing the salon. Geisler identified appellant as the assailant. (2)

The complainant testified that after appellant took her purse, appellant brandished a revolver. This made her feel "scared to death" and "threatened," and she was in "fear of bodily injury or harm." The complainant identified appellant as the assailant. (3)

Pasadena Police Department Detective R. Herrera, Sr., testified that on July 21, 2006, he saw appellant inside a white-colored pickup truck. Pasadena Police Department Officer J. Martinez testified that he recovered an orange, plastic hard hat and sunglasses from the truck. Pasadena Police Department Officer R. Hunt testified that he recovered a Smith and Wesson revolver, caliber .38, from inside the truck. (4) After the trial court signed its judgment and sentence, appellant filed a motion for new trial, asserting that his trial counsel provided him with ineffective assistance. After hearing the evidence and arguments of counsel, the trial court denied the motion.

Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is legally and factually insufficient to support his conviction because "there was conflicting testimony" about whether the complainant was in fear of imminent bodily injury or death.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

A person commits the offense of robbery if in the course of committing theft and with intent to obtain or maintain control of the property, the person "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. 29.02(a)(2) (Vernon 2003). The offense of robbery is elevated to the offense of aggravated robbery if the person "uses or exhibits a deadly weapon." Id. 29.03(a)(2) (Vernon 2003). A firearm is considered a deadly weapon. Id. 1.07(a)(17)(A) (Vernon Supp. 2007).

Here, viewing the evidence in a light most favorable to the verdict, the complainant testified that she felt "scared to death," "threatened," and was in "fear of bodily injury or harm" when appellant brandished the revolver. A rational trier of fact could have found, beyond a reasonable doubt, that appellant intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death so as to commit the offense of aggravated robbery. See Patterson v. State, 639 S.W.2d 695, 696 (Tex. Crim. App. 1982) (evidence of fear of imminent bodily injury found to be legally sufficient where complainant testified that she feared imminent bodily injury, believed defendant had gun, and felt threatened). Accordingly, we hold that the evidence is legally sufficient to support the jury's implied finding that appellant placed the complainant in fear of imminent bodily injury or death.

Viewing the evidence neutrally, although the complainant initially stated after she was asked if she was in fear of her life, "I don't know that it was my life as much as [Geisler's life]," she further testified that she was in "fear of bodily injury or harm." Also, the complainant unequivocally testified that she was "scared to death" and felt "threatened" while appellant was brandishing a revolver in her direction after he took her purse. We conclude that the evidence is not so obviously weak such that the verdict is clearly wrong and manifestly unjust, or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support the jury's implied finding that appellant placed the complainant in fear of imminent bodily injury or death.

We overrule appellant's first issue.

Ineffective Assistance of Counsel

In his second and third issues, appellant argues that the trial court abused its discretion in denying his motion for new trial because his trial counsel's "failure to conduct [an] adequate pretrial investigation of [appellant's] mental health history was not [a] reasonable strategy." Appellant asserts that "[t]here is absolutely no plausible trial strategy to justify not calling a medical expert or psychiatrist as mitigation [evidence during the punishment phase of trial] to discuss depression and possible Zoloft side effects, given [appellant's] psychiatric history and medication."

In order to prove an ineffective assistance of counsel claim, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and, but for his counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Generally, we review a trial court's denial of a motion for a new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). However, the United States Supreme Court has explicitly held that "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Strickland, 466 U.S. at 698, 104 S. Ct. at 2070; see also Williams v. Taylor, 529 U.S. 362, 419, 120 S. Ct. 1495, 1526 (2000) ("While the determination of 'prejudice' in the legal sense may be a question of law, the subsidiary inquiries are heavily factbound."). Thus, although we generally review the trial court's decision to grant or deny a motion for new trial for an abuse of discretion, we are not bound by a trial court's conclusion regarding the effectiveness of counsel. See Strickland, 466 U.S. at 698, 104 S. Ct. at 2070; Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). Accordingly, "where the trial court 'is not in an appreciably better position' than the appellate court to decide the issue, the appellate court may independently determine the issue while affording deference to the trial court's findings on subsidiary factual questions." Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J., concurring) (quoting Miller v. Fenton, 474 U.S. 104, 117, 106 S. Ct. 445, 453 (1985)); see Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999). Yet, the trial court remains in the best position to evaluate the credibility of the witnesses and resolve such conflicts. Kober, 988 S.W.2d at 233; see Strickland, 466 U.S. at 698, 104 S. Ct. at 2070.

Trial counsel has a duty "'to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). Trial counsel's decision to not investigate "'must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Id. (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). When determining whether trial counsel conducted an adequate investigation for potential mitigating evidence, "we focus on whether the investigation supporting [trial] counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable." Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 2536 (2003); Freeman v. State, 167 S.W.3d 114, 117 (Tex. App.--Waco 2005, no pet.). Trial counsel is not required "to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing." Freeman, 167 S.W.3d at 117.

Also, when a defendant complains that his trial counsel rendered ineffective assistance by failing to call an expert witness, the defendant must first show that the expert would have testified in a manner beneficial to him. See Cate v. State, 124 S.W.3d 922, 927 (Tex. App.--Amarillo 2004, pet. ref'd); Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.--Texarkana 2002, pet. ref'd).

Here, before trial, appellant's trial counsel obtained a competency evaluation and a sanity evaluation of appellant. In the evaluations, Dr. Ramon A. Laval, a licensed psychologist, stated that, although appellant suffered from depression, he was competent to stand trial and sane at the time he committed the offense. Dr. Laval noted appellant's assertion that he was taking Zoloft, but he found appellant's thought process to be "logical and coherent." Dr. Laval thoroughly described appellant's asserted side effects.

Also, during the punishment hearing, appellant's son, David Pool, testified that he had concerns about appellant's behavior and decision-making in general. Another son of appellant, Michael Pool, testified that appellant suffered from depression, but he was not aware that appellant was taking any medication for depression. Appellant's mother, Marion Pool, and appellant's daughter-in-law, Tasha Pool, both testified that appellant was suffering from depression and taking medication. Also, appellant testified that he was suffering from depression. Appellant asserted that his anti-depression medicine, Zoloft, "really got [him] in[to] trouble" because it caused him to be "forgetful" and "have blackouts."

In sum, during the punishment phase of trial, appellant's trial counsel called appellant and five other witnesses to testify in appellant's favor. During his jury argument, trial counsel argued that appellant's depression and the effect of his medication should mitigate in favor of appellant in regard to his sentence.

At appellant's hearing on his motion for new trial, appellant had been appointed new counsel, who argued that appellant's trial counsel had provided appellant ineffective assistance because he failed to investigate and provide adequate mitigation evidence of appellant's prior psychiatric problems. At the hearing, appellant's trial counsel testified that he did "an extensive investigation" of appellant's case. Appellant's trial counsel explained that appellant had told him that appellant had seen a psychologist in the past, but appellant "could not remember the name of the psychologist. . . . or [the] location of the psychologist." Appellant's trial counsel further explained that when he spoke to appellant's sons, they did not mention to him that appellant was seeing a psychologist, stating that appellant was "resistant . . . to seek[ing] professional help." Appellant's trial counsel also noted that he "looked into the possible side effects [of] Zoloft," but "could find no evidence that would suggest it would impair an individual's ability to distinguish between right [and] wrong." Appellant's trial counsel further noted that he did not find "any evidence to suggest that Zoloft would cause a person to commit . . . crimes."

Appellant, at the hearing, testified that he had told his trial counsel that he "was taking Zoloft from Mexico," explaining that his trial counsel "didn't say anything to me about it and never followed up with doctors or witnesses and it was never mentioned in [his] trial." Appellant did not present records showing that he had taken Zoloft. He did present an affidavit, in which a doctor testified that in 1997, the doctor prescribed appellant Zoloft, and the doctor had since destroyed the records in the ordinary course of business.

In support of his argument that he received ineffective assistance, appellant relies on Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) and Freeman v. State, 167 S.W.3d 114 (Tex. App.--Waco 2005, no pet.). Neither case is applicable here. In Briggs, the Texas Court of Criminal Appeals found that trial counsel provided ineffective assistance when he decided not to hire an expert witness based solely on economical reasons, concluding that trial counsel's failure to investigate "was not a 'strategic' decision, [but rather,] an economical one." Briggs, 187 S.W.3d at 467. In Freeman, based on numerous medical records, a psychiatrist testified, posttrial, that the defendant may have been legally insane at the time of the offense. Freeman, 167 S.W.3d at 118-19. The appellate court found that trial counsel provided ineffective assistance because trial counsel "conceded that he did not investigate [the defendant's] mental health history, even though [trial] counsel knew [the defendant] had a history of mental health issues." Id. at 119.

Here, in stark contrast, trial counsel obtained pretrial competency and sanity evaluations of appellant by Dr. Laval. Trial counsel introduced the evaluations into evidence during the punishment hearing, placing appellant's assertion that he was affected by Zoloft in front of the jury. Moreover, trial counsel presented three family members who testified that appellant was depressed, two family members who testified that appellant was taking medication, and appellant who testified that he was depressed and taking medication. Appellant described for the jury the side effects he experienced from taking the medication, such as "blackouts." Trial counsel stated during argument that appellant's depression and self-medication were mitigating factors.

Unlike in Briggs, trial counsel's decision not to call an expert at punishment was not an economical one. Here, trial counsel noted that appellant told him he could not remember the name or address of the psychologist that he had seen many years ago. Also, unlike in Freeman, here, trial counsel made personal investigations into the effects of Zoloft and interviewed appellant and his family. He reasonably concluded, based on his personal investigation and a psychologist's recommendation, that appellant knew right from wrong at the time of the offense. In fact, calling an expert at punishment may have compromised trial counsel's argument that evidence of appellant's depression and use of Zoloft should mitigate in appellant's favor in regard to the jury's sentence.

Moreover, appellant even concedes in his appellate brief that it is "sheer speculation" that an expert would have been beneficial to him. Thus, appellant has failed to make an initial showing of possible ineffective assistance because he has not shown that the expert's testimony would have benefitted him. See Cate, 124 S.W.3d at 927.

Accordingly, we hold that appellant has not shown that his trial counsel failed "to conduct [an] adequate pretrial investigation" or that his representation of appellant fell below an objective standard of reasonableness. We further hold that the trial court did not abuse its discretion in denying appellant's motion for new trial.

We overrule appellant's second and third issues.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

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

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

1. See Tex. Penal Code Ann. 29.03(a)(2) (Vernon 2003).

2. Thomas Lara, also a hair stylist at the salon, identified appellant as the assailant as well.

3. Clara Rodriguez, a customer at the salon, testified that appellant also took her purse and identified appellant as the assailant.

4. Geisler testified that the revolver was either "the same or similar to the weapon [which she] observed" appellant brandishing after he took the two purses from the complainant and Rodriguez in the salon.