Daryl Odom v. The State of Texas--Appeal from 402nd Judicial District Court of Wood County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00105-CR

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DARYL ODOM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 14,628-96

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

The trial court adjudicated Daryl Odom's guilt for aggravated sexual assault of a child and sentenced him to fifteen years' imprisonment. On appeal, Odom first claims he received ineffective assistance of counsel at trial. In his second point of error, Odom contends that, because his conviction is for a noncapital offense, this Court will deny him meaningful due process if we analyze his claim for ineffective assistance of counsel under the test required by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and made applicable to state constitutional claims by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 56 57 (Tex. Crim. App. 1986). We overrule both points of error and affirm the trial court's judgment.

Standard of Review

The standard for testing claims of ineffective assistance of counsel is set out in Strickland, 466 U.S. 668, and adopted for Texas constitutional claims in Hernandez, 726 S.W.2d at 57. To prevail on a claim of ineffective assistance, an appellant must, by a preponderance of the evidence, prove: (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient representation prejudiced appellant's defense. Strickland, 466 U.S. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, an appellant must show that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). In other words, the appellant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. If, however, "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals has warned litigants that "the record on direct appeal is [often] simply underdeveloped and cannot adequately reflect the failings of trial counsel." Thompson v. State, 9 S.W.3d 808, 813 14 (Tex. Crim. App. 1999). This state's highest criminal court has frequently suggested claims of ineffective assistance are more effective pursued through an application for habeas corpus, because a collateral attack provides an opportunity to develop a record regarding counsel's trial strategy. See Bone, 77 S.W.3d at 836 (habeas litigation also affords trial counsel opportunity to explain actions before being condemned as unprofessional and incompetent).

To the extent Odom urges us to adopt a different standard of review, both the United States Supreme Court and the Texas Court of Criminal Appeals have decided this issue against Odom. The Strickland Hernandez analysis applies to capital and noncapital cases alike. See, e.g., Freeman v. State, No. 2156-01, 2003 WL 22510582 (Tex. Crim. App. Nov. 5, 2003) (retaliation); Resendiz v. State, 112 S.W.3d 541 (Tex. Crim. App. 2003) (capital murder with death penalty assessed); Bone, 77 S.W.3d 828 (driving while intoxicated). We decline Odom's invitation to ignore binding precedent, and we overrule Odom's second point of error.

Analysis

In his first point of error, Odom contends his trial counsel's failure to object to not being allowed to present mitigation evidence during a separate punishment hearing cannot be justified as reasonable trial strategy and resulted in Odom receiving ineffective assistance of counsel at trial. Odom concedes, however, that he "cannot show, based on any sentencing outcome, what the trial court might or might not have done with any mitigating evidence" and therefore cannot demonstrate harm under the second prong of Strickland. Instead, Odom writes that he "can only speculate that had he had some opportunity to present favorable witnesses, it logically flows that these witnesses would have likely tipped the scales in his favor to a less severe punishment."

First, a reasonable explanation exists for trial counsel's decision not to object to the absence of a distinct and separate punishment hearing: Odom may have had no mitigating evidence available to present at the time of the hearing. A review of the record does not suggest that anyone except Odom, his counsel, the State, the State's two witnesses, and the trial judge were present at the hearing. The absence of any mitigating evidence would justify trial counsel's decision not to object to the trial court's procedure. Cf. Bone, 77 S.W.3d at 836 37 (nothing in record suggests more mitigating evidence existed; appellate court erred finding ineffective assistance).

Second, Odom claims he was not given an opportunity to object in the trial court to the lack of a separate punishment hearing, but Odom did not file a motion for new trial. The Austin Court of Appeals has suggested that a defendant whose guilt is adjudicated cannot, for the first time on appeal, complain the trial court erred by failing to conduct a separate punishment hearing. Lopez v. State, 96 S.W.3d 406, 415 16 (Tex. App. Austin 2002, pet. ref'd). Error must be preserved either by objecting before the trial court during the adjudication hearing when given such an opportunity or, if no such opportunity was available, by filing a motion for new trial. Id. Odom neither objected before the trial court nor raised the issue of a separate punishment hearing in a motion for new trial.

Third, as he now concedes, Odom cannot demonstrate, by a preponderance of the evidence, that but for counsel's alleged error, the result would have been different. Accordingly, Odom has satisfied neither prong of the Strickland Hernandez analysis for claims of ineffective assistance.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 6, 2004

Date Decided: February 20, 2004

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