Dwight Griffin v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-02-00201-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DWIGHT GRIFFIN,

 
APPEAL FROM THE 114TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXASMEMORANDUM OPINION

Dwight Griffin ("Appellant") appeals his conviction for retaliation, for which he was sentenced to imprisonment for fifteen years. Appellant raises one issue on appeal. We affirm.

 

Background

On October 28, 2001, Appellant was arrested for public intoxication after he was found lying in the driveway of a motel in Tyler, Texas. After he was placed in the back seat of the arresting officer's patrol vehicle, Appellant made a threatening remark to the officer. Appellant was indicted for retaliation and pleaded guilty. Following Appellant's guilty plea, Appellant retained new counsel and withdrew his guilty plea. (1) At the conclusion of a trial on the merits, a jury found Appellant guilty as charged. The same jury also found the enhancement paragraph in the indictment to be true and assessed Appellant's punishment at imprisonment for fifteen years. The trial court sentenced Appellant accordingly and this appeal followed.

 

Ineffective Assistance of Counsel

In his sole issue, Appellant argues that his trial counsel was ineffective for the following reasons: (1) he filed a motion to withdraw Appellant's guilty plea; (2) he attempted to quash enhancement paragraphs in the indictment without legitimate grounds to do so; (3) he filed a handwritten motion for continuance on the day of trial; (4) he failed to challenge any juror for cause during voir dire; (5) he failed to effectively cross-examine the State's witnesses or otherwise challenge their respective testimonies; (6) he failed to challenge the police report of the arresting officer; (7) he made multiple side bar comments before the jury; (8) he made a poorly reasoned motion for directed verdict; (9) he failed to offer Appellant's mother's credentials as a nurse; and (10) he employed a theory of the case which did not provide the jury with a reason to acquit Appellant. Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel's representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App.-Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).

In the case at hand, the record is almost completely silent as to the reasons Appellant's trial counsel chose the course he did. The only instance where there is some indication as to the reason for Appellant's counsel's actions relates to the withdrawal of Appellant's guilty plea. Our review of the record reveals that Appellant's counsel sought to withdraw Appellant's guilty plea because that was Appellant's express desire. Had Appellant's counsel refused to assist Appellant in withdrawing his guilty plea, which Appellant claimed was entered as a result of coercion from his prior counsel, such a refusal itself could have amounted to coercion. We cannot conclude that seeking to enforce a defendant's constitutional right to a trial by jury when a defendant expresses such a desire falls below the professional norm of reasonableness. See Tex. Disciplinary R. Prof'l Conduct 1.02(a)(3), reprinted in Tex. Gov't. Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, 9) (in a criminal case, a lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify); see also Tex. Const. art. I, 10, 15, art. V, 13; Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon 1977).

As to the remaining alleged deficiencies in his trial counsel's performance, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant's trial counsel's reasons for choosing the course he did. As such, we cannot conclude that Appellant's trial counsel was ineffective. Appellant's sole issue is overruled.

Conclusion

Having overruled Appellant's sole issue, we affirm the judgment of the trial court.

 

SAM GRIFFITH

Justice

 

Opinion delivered August 6, 2003.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

 
(DO NOT PUBLISH)

1. After Appellant withdrew his guilty plea, the case was transferred to the 114th Judicial District Court of Smith County, Texas.