Foster v. State

• Decision Date: 22 December 1999
• Docket Number: No. 10-99-041-CR,10-99-041-CR
• Citation: 8 S.W.3d 445
• Parties: (Tex.App.-Waco 1999) TOMMY DALE FOSTER, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 445

8 S.W.3d 445 (Tex.App.-Waco 1999)

TOMMY DALE FOSTER, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-99-041-CR

IN THE TENTH COURT OF APPEALS

December 22, 1999

From the 40th District Court Ellis County, Texas Trial Court # 23752CR

Before Chief Justice Davis, Justice Vance, and Justice Gray

O P I N I O N

BILL VANCE, Justice

A jury found Tommy Dale Foster guilty of felony driving while intoxicated. See TEX. PEN. CODE ANN. 49.04, 49.09 (Vernon 1994 & Supp. 1999). He elected to have the court assess punishment and was sentenced to ten years' imprisonment plus a $10,000 fine. He appeals from alleged error in the punishment phase of trial.¹

EFFECTIVE ASSISTANCE OF COUNSEL

In issues one through three and six through eight, Foster complains that he was denied the effective assistance of counsel. It is undisputed that these claims were not presented to the trial court in a motion for new trial or otherwise. We have determined that ineffective-assistance-of-counsel claims must be presented to the trial court to be preserved for appellate review. Gonzalez v. State, 994 S.W.2d 369, 372-74 (Tex. App.-Waco 1999, no pet.) (citing TEX. R. APP. P. 33.1(a)). Foster relies, however, on Rule 21.2 of the Rules of Appellate Procedure, which states: "A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record." TEX. R. APP. P. 21.2. We believe that our position in Gonzalez is consistent with Rule 21.2 in that counsel's explanations of trial strategy or reasons for actions taken or not taken can only be adduced in a post-trial hearing.

After our decision in Gonzalez, the Court of Criminal Appeals' decided Thompson v. State, where the Court held that "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, No. 1532-98, 9 s.w.3D 808, 813 (Tex. Crim. App. October 13, 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 117 S.Ct. 966 (1997)). The Court found the record silent as to why counsel "failed to object to the State's persistent attempts to elicit inadmissible hearsay" and concluded that Thompson "failed to rebut the presumption this was a reasonable decision." Id. at 11. Six judges concluded that a habeas corpus proceeding would "provide an opportunity to conduct a detailed hearing to consider the facts, circumstances, and rationale behind counsel's actions at that juncture of trial. Specifically, a hearing would allow trial counsel himself to explain why no objection was voiced during the proceedings." Id. at 12. Thompson reinforces our belief that Gonzalez is correct. Counsel's strategy or motives can almost never be determined from the record.

Furthermore, the Court of Criminal Appeals held in a recent decision, "Except for complaints involving fundamental constitutional systemic requirements . . ., all other complaints . . . are waived by failure to comply with Rule 33.1." Ibarra v. State, No. 72,974, 11 S.W.3D 189, 197 (Tex. Crim. App. October 20, 1999). The Supreme Court has defined such requirements in part as those which, when denied, "defy analysis by 'harmless error' standards." Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). A complete denial of counsel falls within this category. See Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963); Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). Ineffective assistance claims are different, however.²

To prevail on an ineffective assistance claim, a defendant must show not only that counsel's performance was deficient, but also that he was "prejudiced" (i.e., harmed) by counsel's performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Phillips v. State, 992 S.W.2d 491, 494-95 (Tex. Crim. App. 1999). Because a defendant must establish harm to prevail on an ineffective assistance claim, such a claim by definition does not fit within that category of errors which "defy analysis by 'harmless error' standards." See Fulminante, 499 U.S. at 309, 111 S.Ct. at 1264. Thus, we remain convinced that an ineffective assistance complaint must be preserved for appeal in accordance with Rule 33.1. See Ibarra, at 196; Gonzalez, 994 S.W.2d at 373.

Our purpose is not to avoid review of complaints about the ineffectiveness of trial counsel. Indeed, we have reviewed properly preserved complaints.³ Rather, we want to encourage the development of a record upon which such complaints can be realistically evaluated-a record available only after a hearing on the specific complaint.⁴

We have recognized that the vehicle of a motion for new trial is "often inadequate because of time constraints and because the trial record has generally not been transcribed at this point." Gonzalez, 994 S.W.2d at 373 (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)). One solution would be to allow the intermediate courts of appeal to make a preliminary determination about whether the claim of ineffective assistance of counsel appears to have merit and, if so, abate the appeal and remand the cause for a hearing on the issue. Such a procedure would have at least four positive benefits: (1) review of the issue would be benefitted by the findings of fact and conclusions of the trial judge who heard and saw counsel in the trial of the case; (2) the interest of the accused would be better protected because of the assistance of appellate counsel in the development of the record, whereas the accused does not always have the benefit of counsel in a post-conviction habeas corpus proceeding; (3) the hearing would be held closer in time to the events of trial than a hearing held in a post-conviction habeas corpus proceeding; and (4) claims of ineffective assistance of counsel would be determined in the direct appeal process rather than, as is often now the case, an abortive attempt to resolve the issue on direct appeal and the later necessity for a habeas corpus proceeding further burdening the Court of Criminal Appeals.⁵

Because we reaffirm our holding in Gonzalez, issues one through three and six through eight are overruled.

MOTIONS TO WITHDRAW

In his fourth issue, Foster asserts that the court erred in "refusing to grant trial counsel's repeated motions to withdraw." Our review of the record shows that the only motion to withdraw presented to the court was granted. Issue four is overruled.

SUA SPONTE INTERVENTION

Foster's fifth issue complains that the court failed "to act or intervene in any way to stop the prejudicial conduct of counsel . . . ." He asserts that counsel's behavior was so outrageous as to put the court on notice that he was not receiving effective representation. Specifically, Foster is complaining about information divulged by counsel about why Foster did not appear for an earlier sentencing hearing. Counsel informed the court that he told Foster when the hearing would occur, that he received...