Broderick Flemings v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00677-CR
Broderick FLEMINGS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-6572
Honorable Mary Roman, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

Broderick Flemings was found guilty of possession of a controlled substance in the amount of more than 4 but less than 200 grams, by a jury and was sentenced to fifteen years in prison as a repeat offender. Flemings' only issue on appeal is that he was denied effective assistance of counsel at trial. We affirm the judgment of the trial court.

Background

Based upon information received from a confidential informant and routine undercover surveillance operations, agents of the Alamo Area Narcotics Task Force stopped and arrested Flemings on April 11, 2002, on an outstanding warrant. Immediately after his arrest, both Flemings and the vehicle he had been driving were moved from the apartment complex to the parking lot of a nearby church. A search of Flemings' vehicle revealed a brown paper bag containing a plastic pill bottle and a small plastic bag. Inside the pill bottle were three small rocks of what was later confirmed to be cocaine. The plastic bag contained a leafy substance that was later confirmed to be marijuana.

At trial, a criminalist from the Abilene Crime Laboratory of the Texas Department of Public Safety testified that the contents of the pill bottle obtained from Flemings' vehicle was cocaine with a net weight of 4.16 grams. Flemings also testified and admitted that he was in possession of cocaine on April 11, 2002, the date of his arrest. He claimed that he had purchased the cocaine the night before from a man named "Mike," and that he had used some of the cocaine that night. Flemings testified that he had purchased an "eight ball" for $150, which he understood to weigh only 3.5 grams. Flemings also admitted that he had a prior conviction for possession of cocaine in 1992 for which he had been sentenced to six years imprisonment. The jury found Flemings guilty of possession of 4 to 200 grams of a controlled substance.

Flemings timely filed a motion for new trial alleging that his trial counsel had been ineffective by failing to: (1) file any and all motions necessary to protect his rights and preserve errors for appeal; (2) procure an affidavit from Flemings' girlfriend stating that she was the owner of the drugs; (3) subpoena Flemings' girlfriend to testify; and (4) investigate the facts and present a well-prepared defense strategy. The motion for new trial was overruled by operation of law.

Flemings' only issue on appeal is that he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and Art. I, 10 of the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, 10. Because we find that Flemings has failed to establish ineffective assistance of counsel as required by Strickland v. Washington, we affirm the judgment of the trial court. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Analysis

To establish ineffective assistance of counsel in a non-capital criminal trial, a defendant must show by a preponderance of the evidence (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland, 466 U.S. at 687; see Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999)(en banc);see also Harling v. State, 899 S.W.2d 9, 12 (Tex. App. --San Antonio 1995, pet. ref'd). To establish deficient performance, the first prong of the Strickland standard, the defendant must show that counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex. Crim. App. 1999). To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record. Id. at 813. The appellate court does not look at isolated acts or omissions to determine effectiveness, but reviews the totality of the representation. Id.; Harling, 899 S.W.2d at 12.

No hearing was held on Flemings' motion for new trial, and the record is therefore silent as to trial counsel's reasons for any acts or omissions in his representation of Flemings at trial. In the absence of a developed evidentiary record, it is extremely difficult to show that trial counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (en banc). Counsel's conduct must be presumed to fall within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To find defendant's trial counsel ineffective without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. Without evidence in the record to both establish deficiency and rebut the prevailing presumption, Flemings is unable to satisfy the first prong of Strickland. See id. at 814; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (en banc) (trial record is often particularly inadequate to reflect the failings of trial counsel when the errors complained of are errors of omission).

Even if there was deficient performance on the part of his trial counsel, Flemings has also failed to establish prejudice - the second prong of Strickland. (1) "Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Harling, 899 S.W.2d at 12 (citing Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988)). There is nothing in the record to indicate what specific motions Flemings asserts his counsel should have made, nor is there anything to suggest that any such motions would have been meritorious. Further, there is no indication that Flemings' girlfriend was available to testify or that her testimony would have been beneficial to Flemings. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)(en banc)(noting that failure to call witnesses is irrelevant to effectiveness determination absent showing of availability and benefit to accused). Given the evidence presented by the State, Flemings has failed to demonstrate that use of an unspecified alternative defense strategy would raise a reasonable probability of securing a different outcome.

Failure to make the required showing of either deficient performance or sufficient prejudice will defeat a claim for ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. Flemings has failed on both accounts. For the reasons discussed above, we affirm the judgment of the trial court. This opinion, however, does not preclude Flemings from raising his ineffective assistance claim in an application for post-conviction writ of habeas corpus filed in the trial court. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004-05); Thompson, 9 S.W.3d at 814-15 (noting this would provide opportunity for a dedicated hearing to consider trial counsel's rationale).

Phylis J. Speedlin, Justice

Do Not Publish

1. In Appellant's brief, Flemings contends that trial counsel's representation constituted ineffective assistance per se, creating a presumption of prejudice. While a single error may, in certain circumstances, be sufficient to require reversal, we do not find such grievous error in this case. See Jackson v. State, 766 S.W.2d 504, 514 (Tex. Crim. App. 1985) (modified on other grounds on remand from U.S. Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex. Crim. App. 1988)); Thompson, 9 S.W.3d at 813.