Ewing v. State

• Decision Date: 06 April 1977
• Docket Number: No. 51935,51935
• Citation: Ewing v. State, 549 S.W.2d 392 (Tex. Crim. App. 1977)
• Parties: Kartis EWING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 392

549 S.W.2d 392

Kartis EWING, Appellant, v. The STATE of Texas, Appellee.

No. 51935.

Court of Criminal Appeals of Texas.

April 6, 1977.

Rehearing Denied May 3, 1977.

Mary B. Edwards, Andrew L. Jefferson, Jr., Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis M. Bell and Robert N. Ross, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted for robbery by assault, an offense prohibited by Art. 1408 of the former Penal Code. His punishment was assessed at ten years' imprisonment.

On appeal appellant is represented by two attorneys. His trial counsel was appointed to represent him on appeal, and his family retained another attorney for the appeal. The retained attorney's brief was filed untimely. We shall, however, review the issue raised in his brief as unassigned error in the interest of justice pursuant to Art. 40.09(13), V.A.C.C.P. Long v. State, Tex.Cr.App., 502 S.W.2d 139.

The sufficiency of the evidence is not challenged.

Virgie Hart, the complaining witness, testified that two males entered the Shipley Do-Nuts shop shortly after 10:00 p. m. on November 29, 1973. After purchasing some donuts, they returned to their car, a brown 1960 Chevrolet. Appellant then went back into the shop and instructed Hart to open the cash register. According to Hart, the appellant had a blue jean jacket over his right hand. Hart stated she was unable to move because she was "in fear of her life." The appellant took approximately $30.00 from the register and fled. The police were notified and were given the license number of the Chevrolet, which Hart had written down.

Carolyn Tabors, also an employee of the shop, told substantially the same story as Hart. Both State witnesses identified the appellant as the robber after the police apprehended him and brought him back to the shop.

Appellant's first ground of error, raised by his attorney appointed at trial, asserts that reversible error was committed when the trial court denied a motion for continuance.

Appellant testified during the trial and denied any participation in the robbery. During cross-examination at the guilt stage of the trial, the appellant stated that he had been mistreated and beaten by the police. He also said that he did not receive medical attention for three days.

Appellant's counsel informed the court that she was unaware of any mistreatment of the appellant. On the basis of surprise, she requested a continuance in order to secure other defense witnesses. This motion was denied.

We perceive no error. The granting of a motion for continuance after the commencement of a trial is within the sound discretion of the trial court. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233. Appellant failed to show what witnesses he would have called if the trial had been postponed. Furthermore, there is nothing in the record describing the additional testimony or evidence that would have been offered. See, Silva v. State, Tex.Cr.App., 502 S.W.2d 149. The first ground of error is overruled.

The attorney retained on appeal has raised the issue of the effectiveness of appellant's retained trial counsel.

For purposes of determining the effectiveness of an attorney's representation, we have adopted the "reasonably effective" assistance of counsel standard for use in this jurisdiction. Mott v. State, 543 S.W.2d 623, citing Satillan v. State, Tex.Cr.App., 470 S.W.2d 677; Ex parte Prior, Tex.Cr.App., 540 S.W.2d 723; Ex parte Gallegos, Tex.Cr.App., 511 S.W.2d 510. We have also formulated reasonable and flexible rules in order to guide our application of this standard.

First, the sufficiency of an attorney's assistance must be gauged by the totality of the representation of the accused. Ex parte Prior, supra. In our system of criminal justice an individual is entitled to a fair but not a perfect trial. Isolated failures to object to certain procedural mistakes or improper evidence do not constitute a breach of legal duty by an accused's attorney.

We also observe that assertions of ineffective counsel shall be sustained only if they are "firmly founded." Williams v. State, Tex.Cr.App.,535 S.W.2d 352; Faz v. State, Tex.Cr.App., 510 S.W.2d 922. The record must affirmatively demonstrate the counsel's ineffectiveness.

Finally, we are not in a position to "second guess", through appellate hindsight, the strategy adopted by counsel at trial. Faz v. State,supra. Trial lawyers occupy the realm of the here and now; they do not possess the luxury of a record to review, nor are they given time to formulate solutions to complex procedural or evidentiary issues in the midst of trial. The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.

Appellant asserts that his trial attorney failed to object to the arresting officers' improper bolstering of the identification testimony entered by Hart and Tabors. The record establishes, however, that the bolstering testimony revealed a discrepancy in the evidence presented by the arresting officers. It is not unreasonable to conclude that the trial counsel's decision not to object to this testimony may have been supported by valid tactical justifications. Faz v. State, supra. A discrepancy in the State's evidence was presented by the improper testimony of the arresting officers. Furthermore, the failure to object to every instance of improper evidence does not mean that appellant's representation was ineffective. See Long v. State, Tex.Cr.App.,502 S.W.2d 139; Roberts v. State, Tex.Cr.App. 493 S.W.2d 849.

This reasoning also applies to the allegations that the trial counsel failed to object when certain hearsay testimony was admitted. Compare, Ruth v. State, Tex.Cr.App., 522 S.W.2d 517.

Appellant also urges that inadequate representation is demonstrated by the trial counsel's cross-examination of the arresting officers. During this cross-examination, appellant was shown to have been a suspect in two burglaries. The cross-examination of the two officers also established, however, that the appellant had not committed these offenses.

Once again, we have a question of tactics. Faz v. State, supra. Appellant testified in his own behalf that he was at the scene of the offense but did not commit any crime. His testimony indicated that a hitchhiker he had picked up committed the offense alleged in the indictment. Counsel may have attempted to demonstrate that the appellant had been suspected of wrongdoing in the past, but that he had eventually been exonerated. The evidence presented by appellant's testimony may be regarded as an effort to establish that, once again, the police and the public had suspected the "wrong man."

We should not, however, attempt to ascertain the specific reason why counsel interrogated the arresting officers in the manner established by the record. Faz v. State, supra. Our duty is to review the totality of the representation and determine whether the appellant has been denied his constitutional right to effective assistance of counsel. Ex parte Prior, supra.

The record does not support the conclusion that appellant's retained trial counsel breached a legal duty to her client. See, Pete v. State, Tex.Cr.App., 533 S.W.2d 808; Ex parte Hill, Tex.Cr.App., 528 S.W.2d 259. The second ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge, dissenting.

The majority holds that "The record does not support the conclusion that appellant's retained trial counsel breached a legal duty to her client." (Emphasis added). I dissent.

The majority's conclusion furthers the obscurity in our decisions related to claims of ineffective assistance. See, Williams v. Estelle, 416 F.Supp. 1073 (N.D.Tex.1976). The "breach of a legal duty" standard is generally applied to claims of ineffective retained counsel, Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976), while the "reasonably effective assistance" standard is generally applied to claims of ineffective appointed counsel. Ex Parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

There should be no distinction made between retained and appointed counsel, and neither should render "inadequate representation." See, Rockwood v. State, 524 S.W.2d 292, 294 (Tex.Cr.App.1975). Both retained and appointed counsel should be "reasonably competent." Ex Parte Gallegos, supra, at 513 (concurring opinion).

When the trial judge appoints a lawyer to represent a person accused of committing a crime, he simply fulfills the constitutional mandate; he does not by his affirmative action, as some prior decisions indicate, create a different standard of competency than the standard created if the individual himself had the wherewithal to hire the lawyer. While economic status may differ from individual to individual, the right to due process should remain the same. The fact that the defendant can pay a fee should not alter this Court's interpretation of his right to counsel. All individuals should stand equal before the law, regardless of economic status.

Aside from noting the above, I concur wholeheartedly in the dissenting opinion of Judge Phillips. The extraneous offenses were developed at length by the questioning of appellant's own counsel. I realize that "There are some cases that cannot be won" and that "An attorney must appraise a case and do the best he can with the facts." Rockwood, supra, at 293. It is equally clear to me that some actions cannot be deemed "trial strategy." Indeed, even the learned trial judge had to inquire of appellant's trial counsel at one point whether she was talking about "this particular offense."

The "breach of a legal duty" is not the test. Appellant was furnished with "inadequate representation." Rockwood, supra, at 294. I cannot in good faith say that appellant's...