Chavis v. State
| Decision Date | 04 December 2012 |
| Docket Number | NO. 14-11-00634-CR,14-11-00634-CR |
| Parties | SHARARD LAVANN CHAVIS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Affirmed and Memorandum Opinion filed December 4, 2012.
On Appeal from the 337th District Court
Harris County
A jury convicted Sharard Lavann Chavis of possession with intent to deliver cocaine. Sharard appeals, arguing he was denied the effective assistance of counsel at trial. We affirm.
Officer Jeffery Johnson of the Houston Police Department, Narcotics Division, received a tip from a confidential informant ("CI") who believed that drugs were beingsold from a house located at 9314 Sterlingshire in Houston. As the lead investigator on the case, Johnson began doing surveillance of the house to determine whether the tip had merit. He also orchestrated a controlled buy, with the CI playing the role of the buyer. According to Johnson, officers Thomas Chapman and Juventino Castro dropped the CI off near the house and maintained constant visual surveillance of the CI during the transaction. The CI approached the house and was greeted by an unidentified black male who was approximately 6'0"-6'2" tall, weighed approximately 180-200 pounds, had a medium complexion, and appeared to be about 23 to 25 years old. The CI asked the male for a quantity of crack cocaine in exchange for cash. The male walked into the house and returned minutes later with a white chunk that appeared to be, and later tested positive for, crack cocaine, and told the CI to come back if he needed more.
On April 29, 2010, Johnson filed an affidavit detailing the findings of his investigation. A magistrate issued a search warrant based on the affidavit. Later that evening, a team of about six or seven police officers executed the search warrant. When they approached the front door, the officers immediately smelled the strong odor of burnt marijuana. They proceeded into the house through the unlocked door and saw a small child and a woman, later determined to be Sharard's son and his son's mother, sitting on a couch in the living room. The first officer to enter the kitchen found Sharard standing next to an open cabinet in which the officer saw a large quantity of crack cocaine, already cut into smaller portions, and a large amount of cash. The officer also saw visible cocaine residue on a small, digital scale on the counter. In another cabinet, the officer found a large quantity of marijuana that had been divided into small baggies. Another officer found Sharard's brother, Melvin, in a hallway close to a bedroom. Melvin had a loaded pistol in his waistband. When the police searched the bedroom, they found compressed cocaine1 next to a large bundle of cash and another loaded pistol. At trial, several of the officers testified that the quantity and packaging of the drugs as well as the large amount of cash and the loaded guns in the home led them to believe that the drugs were intendedfor sale rather than for personal use. After finding evidence linking Sharard2 and Melvin to the house, the officers arrested the brothers and released the woman, child, and a third man they had found in the house. Johnson read Sharard his Miranda rights, and Sharard voluntarily said, in reference to the narcotics in the house, Sharard told Johnson that he and Melvin both sold drugs out of the house and proceeded to walk around the house with the police officers and showed them where he and Melvin each kept their respective stashes.
Both Sharard and Melvin were indicted for the felony offense of possession with the intent to deliver a controlled substance, namely, cocaine, weighing more than four grams and less than 200 grams by aggregate weight, including any adulterants or dilutants. Melvin pleaded guilty and was sentenced to three years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. Sharard pleaded not guilty, but a jury convicted him and, after he pleaded "true" to an enhancement paragraph, sentenced him to twenty years' imprisonment. Sharard then retained new counsel and filed a motion for new trial, alleging he had been denied the effective assistance of counsel. The trial court held hearing on the motion and ultimately denied it. This appeal followed.
On appeal, Sharard again complains that his trial counsel denied him effective assistance in violation of his Sixth- and Fourteenth-Amendment rights. Specifically, Sharard argues his trial counsel (1) failed to perform any investigation or preparation in the year leading up to trial, (2) failed to perform any meaningful "emergency" investigation and preparation, (3) failed to move to suppress evidence obtained pursuant to the search warrant that led to Sharard's arrest, (4) failed to investigate and call Melvin to testify, and (5) elicited inadmissible prior convictions from Sharard during his testimony and generally failed to prepare him to testify.3
In order to prevail on an ineffective-assistance-of-counsel claim, a convicted defendant must show that (1) his trial counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (). Unless an appellant proves both prongs, an appellate court must not find counsel's representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland, 466 U.S. at 687). To satisfy the first prong, the appellant must identify the acts or omissions of counsel that allegedly were not the result of reasonable, professional judgment and show by a preponderance of the evidence that those acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. To satisfy the second prong, the appellant must show a reasonable probability—or a probability sufficient to undermine confidence in the outcome—that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694; Lopez, 343 S.W.3d at 142.
Judicial scrutiny of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689. A reviewing court must consider the totality of the representation andthe facts and circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Further, the court must assess the reasonableness of counsel's conduct viewed as of the time of that conduct and avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689-90; Ingham v. State, 679 S.W.2d 503, 508 (Tex. Crim. App. 1984). Because of the inherent difficulty in making this decision, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142. To overcome this presumption, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. When the record is silent as to trial counsel's strategy, an appellate court will not conclude counsel's assistance was ineffective unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). When, as here, a defendant asserts ineffective assistance of counsel in a motion for new trial, we review the trial court's denial of the motion for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); superseded in past on other grounds by rule, State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007).
In Sharard's first, second, and fourth issues, he argues that James Dyer and Joseph Libby, his trial counsel, failed to perform any investigation or preparation in the year leading up to the trial, specifically referring to the fact that they neither visited the scene nor interviewed Melvin or called him to testify at trial. Sharard also argues that Libby failed to conduct any "emergency" investigation and preparation on the day of his trial. For their part, Dyer and Libby maintain that did prepare and were "as ready as [they] could be." Because these issues all relate to Libby and Dyer's legal duty to investigate and prepare for trial, we consider them together.
A criminal defendant's trial counsel has a duty to either make reasonable investigations or make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691; McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (per curiam); overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). We consider counsel's decision not to investigate or to limit the scope of an investigation with a great deal of deference to counsel's judgment, looking to the reasonableness of the decision in light of the totality of the circumstances. Strickland, 466 U.S. at 691; McFarland, 928 S.W.2d at 501. The defendant's own statements and actions substantially influence the reasonableness of counsel's actions, and when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. Strickland, 466 U.S. at 691. The decision to call a witness to testify is generally a matter of trial strategy, but the failure to interview a witness falls below an objective standard of reasonableness when such inaction precludes an accused from advancing any viable defense. Perez v. State, 14-07-00414-CR, ___ S.W.3d ___, 2008 WL 5220302, at *4 (Tex. App.—Houston [14th Dist.] Dec. 11, 2008), aff'd, 310 S.W.3d...
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