Tommy Elton Robertson, Sr. v. The State of Texas--Appeal from 51st District Court of Tom Green County

NUMBER 13-06-00315-CR

 

COURT OF APPEALS

 

THIRTEENTH DISTRICT OF TEXAS

 

CORPUS CHRISTI - EDINBURG

 

TOMMY ELTON ROBERTSON, SR., Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 51st District Court of Tom Green County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Chief Justice Valdez

A jury convicted appellant, Tommy Elton Robertson, Sr., of sexual assault of a child and assessed punishment at twenty years' imprisonment. See Tex. Penal Code Ann. 22.011(a)(2) (Vernon Supp. 2006). On appeal, appellant contends that he was denied effective assistance of counsel. We affirm.

I. Background

Appellant and his two sons, Tom Elton Robertson II and Sam Robertson, were separately indicted for sexual assault of the same child, J.J. According to J.J., she had been sexually assaulted by all three men at various and separate times beginning when she was fourteen years old. These alleged sexual assaults occurred while J.J.'s mother was dating appellant. When she was fifteen years old, J.J. became pregnant. DNA analysis showed that Tom Elton Robertson II is the father of J.J.'s baby.

Before bringing appellant to trial, the State moved to join Tom Elton Robertson II and Sam Robertson as codefendants in appellant's case. The motion for joinder alleged that "the indictments charge the same offenses and occur as part of the same criminal episode in that they are perpetrated against the same victim over the same period of time (albeit not at the same time) . . . the witnesses will be the same in each case and the evidence offered by the State will be the same in each case."

On November 9, 2005, the trial court held a pretrial hearing on the State's motion for joinder. At the hearing, the three attorneys representing the three defendants argued that they needed more time to discuss the possibility of a joint trial with each other and with their clients. Moreover, appellant's attorney, Kirk Hawkins, hinted to the trial court that if the State agreed not to use a prior felony conviction as impeachment evidence against his client, he would agree to a joint trial. At the end of the hearing, the judge overruled the State's motion for joinder, stating, "[m]y inclination is not to join [the cases] at this time . . . the only way I am going to join them is if everybody agrees to join."

At some point after the pretrial hearing, Hawkins and Galen Moeller, attorney for Tom Elton Robertson II, agreed to a joint trial. (1) Sam Robertson was not joined as a codefendant. During the joint trial, the State presented eleven witnesses, including J.J., and numerous exhibits, including photographs, recorded phone calls, and blood samples. Neither appellant or Robertson II testified. After the close of the evidence, the jury returned a guilty verdict for both defendants and sentenced them both to twenty years in prison.

II. Effective Assistance of Counsel

In a single issue, appellant asserts that trial counsel's failure to insist on a separate trial for his client rendered his entire representation ineffective. Specifically, appellant asserts that allowing appellant's case to be jointly tried with the only defendant who could be scientifically shown to have sexual contact with the child amounts to great prejudice.

A. Standard of Review

The right to counsel guaranteed by the Sixth Amendment is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The proper standard for attorney performance is that of reasonably effective assistance. Id. at 687. Appellant's claim that his counsel's assistance was so defective as to require reversal of his conviction requires a showing that (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) this deficient performance prejudiced the defense by more likely than not altering the outcome of the case. Id. at 687-94; Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the standard set forth in Strickland for ineffective assistance claims under the Texas Constitution). The standard set forth in Strickland applies to claims of ineffective assistance of counsel at each phase of trial. See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999).

An allegation of ineffective assistance of counsel must be firmly founded in the record with the record affirmatively demonstrating the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In a direct appeal, a reviewing court is rarely provided with a record capable of providing a fair evaluation of the merits of such an allegation of ineffective assistance, as the record often does not adequately reflect the failings of trial counsel. Id. at 813-14. Consequently, we indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

B. Analysis

Appellant argues that his counsel rendered ineffective assistance by not seeking a severance of his case from the case against his son, Robertson II. Appellant argues that evidence that Robertson II was the father of the J.J.'s child was very prejudicial to appellant.

A request for severance, when it is not required as a matter of law, is a purely tactical decision to be made by trial counsel and his client. Woods v. State, 998 S.W.2d 633, 635 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Even when a severance is mandatory upon the request of counsel, (2) counsel may have strategic reasons for not requesting severance. Id. For example, and pertinent here, the evidence may be such that it is advantageous to be tried along with a codefendant because the contrast in culpability or involvement between the two defendants favors a strategy of allowing the jury to focus on the codefendant, rather than the alternative of being tried alone. Id. at 635-36. Thus, even though appellant may argue ineffective assistance under these circumstances, that alone does not overcome the presumption that counsel's failure to request a severance was sound in trial strategy. Id. at 636.

The record in this case, including appellant's motion for new trial and the record of the hearing on appellant's motion for new trial, is silent as to the reasons appellant's counsel agreed to the joint trial instead of requesting a severance.

Under these circumstances, we will not speculate regarding the manner in which trial counsel conducted appellant's defense. Id. at 635-37. Appellant has not rebutted the presumption that his counsel's failure to request a severance was a decision made in the exercise of reasonable professional judgment. Id. at 636. Appellant's sole issue is overruled.

III. Conclusion

The judgment of the trial court is affirmed.

 

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 28th day of August, 2007.

1. At trial, the judge confirmed with the codefendant's attorneys that the joinder of the case against appellant with the case against Robertson II was by agreement:

 

The Court: And just for purposes of the record, you-all have consented to having these cases tried together; is that correct, Mr. Hawkins?

Mr. Hawkins: Yes, your Honor.

The Court: Mr. Moeller?

Mr. Moeller: That is correct.

2. There are two grounds for mandatory severance upon timely request of counsel: (1) when there is a previous admissible conviction against one defendant, and (2) when a joint trial could be prejudicial to any defendant. See Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 2006); see also Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006).