Koshgarian v. State
| Decision Date | 26 August 2021 |
| Docket Number | 13-20-00063-CR |
| Parties | JOHN ANTHONY KOSHGARIAN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do not publish. TEX. R. APP. P. 47.2 (b).
On appeal from the 186th District Court of Bexar County, Texas.
Before Justices Benavides, Longoria, and Tijerina
By three issues, appellant John Anthony Koshgarian challenges his conviction for possession of a controlled substance between one and four grams, a third-degree felony. See TEX. HEALTH &SAFE. CODE ANN. § 481.015. Koshgarian alleges (1-2) his trial counsel was ineffective and (3) the trial court erred by not conducting a hearing on his motion for new trial. We affirm.
On September 9, 2019, in a pre-trial hearing, Koshgarian requested to waive a jury and proceed with a trial before the bench. The trial court admonished Koshgarian about his request to waive a jury trial, asked him if he had discussed his request with his attorney, and if he understood what a "judge-only" trial meant. Koshgarian stated he had discussed it with his attorney, understood what he was doing and still requested to waive a jury trial. Following the waiver, the State read the indictment and Koshgarian pleaded not guilty. The trial court recessed until the following day to present the State's witnesses.
On September 10, 2019, Koshgarian requested to rescind his waiver of a jury trial. The trial court explained that his trial before the bench, pursuant to his request, had started the day prior and jeopardy had already attached. It then denied Koshgarian's request. Koshgarian also requested to be evaluated for competency, but the trial court stated it had seen no reason to justify a competency evaluation and denied that request.
At trial, the State called Officer Curtis Sanders of the Live Oak Police Department as a witness to testify regarding his interaction with Koshgarian. Officer Sanders said he first saw Koshgarian walking through local hotel parking lots on April 5, 2018, around 1:55 a.m. Officer Sanders saw Koshgarian about thirty minutes later walking past an auto dealership towards a neighborhood. He described the area as a "high crime area" known for drug sales. Officer Sanders described his initial interaction with Koshgarian as a "friendly encounter," and said that he asked Koshgarian why he was walking in the area. According to Officer Sanders, Koshgarian explained he was waiting for a ride from a friend for the last three hours and when she did not show up, he began walking. Koshgarian also told Officer Sanders his phone had died, and he was looking for a place to charge it. Officer Sanders offered to take Koshgarian near Cibolo, Texas, where Koshgarian said he lived and was trying to get to. Officer Sanders said Koshgarian initially accepted the offer of a ride, but he changed his mind when Officer Sanders told him he would need to pat him down first to search for weapons. Koshgarian stated that Officer Sanders could search the backpack he was carrying but declined to have his person patted down. Officer Sanders explained that he is a K-9 officer, so he went to get his canine to do an open-air sniff around Koshgarian's backpack. Officer Sanders stated his K-9 partner was trained to detect five different types of narcotics and to search articles, not people. The K-9 officer alerted two different times to Koshgarian's backpack. Officer Sanders said because of the positive alerts, he had probable cause to conduct a search of Koshgarian's person, and during that search, he located a bag of marijuana and a bag of methamphetamine.
On cross-examination, Officer Sanders agreed initially there was no probable cause to stop Koshgarian, and he initially stopped to see if Koshgarian needed assistance. On re-direct examination, Officer Sanders stated the area Koshgarian was in was not an area "people normally walk in," especially at 2 a.m. He also testified that he only searched Koshgarian after the K-9 officer alerted to Koshgarian's backpack and found the drugs in Koshgarian's front coin pocket. A body camera video from Officer Sanders was admitted into evidence, which confirmed his version of events although portions of the sound were redacted. A forensic scientist from the Bexar County Crime Lab testified that the narcotics tested positive for methamphetamine. The State rested its case following those witnesses.
Koshgarian testified regarding his version of the events of that evening. He stated he was a 100% disabled United States Navy veteran. Koshgarian explained he had been at a friend's house and left around 8 p.m. to wait for a ride, but his ride never arrived. He said the encounter with Officer Sanders was about two miles from the friend's house, and he told Officer Sanders he was walking home. Koshgarian agreed that Officer Sanders offered him a ride closer to home, but Officer Sanders "creeped" him out and he declined. Koshgarian believed he asked if he was free to leave several times and stated he asked if Officer Sanders was wearing a body camera. Koshgarian explained he felt pressured by Officer Sanders, so he allowed Officer Sanders to search his backpack. Koshgarian testified that after the K-9 officer was placed in Officer Sanders's unit, Koshgarian was "slammed" into the patrol car. As he was being patted down, Koshgarian stated that he saw a bag "fly" over his right shoulder, which he says was the methamphetamine found. He said that he did not know anything about the methamphetamine because it "wasn't his." Koshgarian admitted he did have a small amount of marijuana on his person, but nothing more.
The trial court found Koshgarian guilty, and following a pre-sentence investigation, sentenced him to ten years' imprisonment in the Texas Department of Criminal Justice- Institutional Division. Following his trial and conviction, Koshgarian retained new counsel for the sentencing phase only. On November 17, 2019, Koshgarian's new counsel filed a motion for new trial prior to his sentence being pronounced. A subsequent motion for new trial was filed on December 2, 2019, which was denied. Koshgarian filed his notice of appeal on December 5, 2019. Appointed appellate counsel filed an "corrected" motion for new trial with the trial court on December 17, 2019. The trial court denied the "corrected" motion for new trial without a hearing on December 18, 2019. This appeal followed.
By his first and second issues, Koshgarian alleges his trial counsel was ineffective by failing to file pre-trial motions, including a motion to suppress, and failing to object to inadmissible evidence.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and under § 10 of article I of the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013).
To prevail on a claim of ineffective assistance of counsel, Koshgarian must prove by a preponderance of the evidence that: (1) counsel's performance fell below the standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, taking into account the totality of the evidence before the judge, Koshgarian was prejudiced by counsel's actions or inactions. See Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018) ().
Our review of counsel's representation under the first prong of Strickland is highly deferential. We indulge a strong presumption that counsel's conduct falls within a wide range of professional assistance, including the possibility that counsel's actions were strategic. 466 U.S. at 689; see Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). To evaluate the effectiveness of counsel's performance, we look at the totality of the representation. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We consider the adequacy of assistance as viewed at the time of trial, not in hindsight. Robertson, 187 S.W.3d at 483. We may not second-guess counsel's strategic decisions, Frangias, 450 S.W.3d at 136, and defense counsel's trial strategy cannot be considered ineffective assistance of counsel simply because another attorney would have used a different strategy. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
Any claim for ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 814. If the record is silent on the motivation behind counsel's tactical decisions, then an appellant usually cannot overcome the strong presumption that counsel's representation was reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Because "the record is generally underdeveloped," direct appeal is usually an inadequate vehicle for claims of ineffective assistance of counsel. Menefield v State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Additionally, courts are hesitant to declare a counsel's performance as deficient until counsel has been afforded an opportunity to explain their reasoning behind their performance. See id. For that reason, "we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only...
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