Michael William Gilbert v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00258-CR

______________________________

MICHAEL WILLIAM GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30369-B

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Michael William Gilbert appeals from his conviction for unauthorized use of a motor vehicle. A jury convicted him and assessed punishment at two years' confinement in a state jail facility and a $10,000.00 fine.

Gilbert contends on appeal that he received constitutionally ineffective assistance of counsel. His argument is based on his contention that there was considerable confusion about for which allegedly stolen vehicle he was being prosecuted and that counsel's failure to make this determination before trial necessarily constituted ineffective assistance of counsel.

The complainant, Jeffrey Wieland, testified that, on September 9, 2002, he had given Gilbert a ride, that he stopped to put gasoline in his car (a Buick Regal), and that, when he came out of the store after paying, the vehicle was gone. The complainant testified he had met Gilbert about two to two and one-half years earlier, and admitted he was intoxicated at the time his car went missing. There is testimony about another person Wieland picked up along with Gilbert, but Wieland testified categorically that this person went into the store with him and that Gilbert was in the car alone. //

The confusion, according to Gilbert, is based on a coincidental identity of names. He states he had been arrested two years earlier for taking a Dodge Charger without the permission of David Wieland, but that he had not gone to trial on that charge. It appears that the father of David Wieland (who actually owned the vehicle) had dropped the charges. In this case, Gilbert was indicted for stealing a vehicle belonging to Jeffrey Wieland. It appears that the two complainants are not related. Although the indictment sets out the name of the complainant, Jeffrey Wieland, it does not specify the type of vehicle involved.

None of this confusion was evident at the trial. The information set out above was elicited at a hearing on his motion for new trial. At that hearing, Gilbert testified that he believed he was being prosecuted for theft of the vehicle belonging to David Wieland. He testified that he realized about five minutes before trial began that he was being tried for a different incident, that involving the theft of the Buick Regal belonging to Jeffrey Wieland on September 9, 2002, and that he had an alibi for that date he was in Oklahoma City at the Oklahoma State Fair. He takes the position that his counsel was ineffective because he failed to sufficiently investigate the allegations, thus preparing for trial on the wrong incident, or alternatively for not asking for a continuance so he could investigate and prepare a defense for the correct charge.

Trial counsel testified that Gilbert's account of the surprise just before trial was correct and that he had attempted to subpoena David Wieland to show that the use of the Dodge Charger was by permission. This would have been a useless act, because David Wieland was not connected with the incident at bar involving a Buick Regal. Counsel testified that he and Gilbert had discussed both vehicles. Counsel also testified that Gilbert's testimony at the hearing was the first he had heard of any claim that Gilbert was in Oklahoma City on September 9, 2002. Counsel also stated that he believed the vehicle was specified in the indictment, so they had obviously discussed the Buick. //

Trial counsel stated he had based his defense on the complainant's severe intoxication at the time of the incident and his resulting confusion about the events. The complainant admitted being intoxicated with both alcohol and marihuana at the time the Buick was taken.

The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. 668; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that his or her 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). Under this standard, a claimant must prove that 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.

Our review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including Gilbert's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App. Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In this case, counsel admits he prepared to defend against the wrong prosecution. This necessarily shows that counsel did not make even a minimal investigation into the correct charge against Gilbert. As pointed out by appellate counsel, the United States Supreme Court recently reiterated that, in order to perform adequately at trial, counsel must conduct a diligent pretrial investigation. Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003). It is obvious that no such investigation could have occurred in this case, by counsel's own admission of the sequence of events that occurred. Further, on discovering the mistake, counsel did not attempt to obtain a continuance. This is error falling below the requisite professional norm.

We thus move to the second prong of Strickland, to determine whether the representation was such as to create a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. As defined above, that means a probability sufficient to undermine confidence in the outcome. Wiggins, 123 S. Ct. at 2542.

In this case, counsel did not investigate the correct charge, familiarize himself with the facts, or interview the complaining witness. At the motion for new trial, Gilbert stated that he was out of town September 9, 2002, and that he could provide an alibi for that date. The State correctly states that this information was necessarily known by Gilbert at the time of the original trial and that he stood mute and that counsel stated at the hearing on the motion for new trial that the first time he had heard of the alibi was on the day of the hearing.

This is a situation where counsel prepared for the wrong case. The fact that he regrouped sufficiently to cross-examine the State's witnesses is not enough. The fact that Gilbert did not testify at the trial is not relevant. The problem here is that Gilbert claims he had an alibi, which counsel suggested might be something that could be supported by evidence other than Gilbert's own testimony. Under these facts, where absolutely no effective pretrial investigation occurred, combined with some evidence of a potential alibi defense, and a single intoxicated person to testify that Gilbert whom he had met only once two years earlier was the person who took the car, we find that our confidence in the outcome of this prosecution is severely undermined.

We reverse the judgment and remand the case to the trial court for a new trial.

Jack Carter

Justice

Date Submitted: June 8, 2004

Date Decided: June 9, 2004

Do Not Publish