Lee v. State, No. 12-05-00359-CR (Tex. App. 2/9/2007)
| Decision Date | 09 February 2007 |
| Docket Number | No. 12-05-00359-CR.,12-05-00359-CR. |
| Parties | REBECCA ANN LEE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 159th Judicial District Court of Angelina County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
Rebecca Ann Lee appeals her conviction for murder. In seven issues, she argues that her trial counsel was ineffective, the evidence was insufficient to sustain her conviction, and the trial court erred in not giving jury instructions she requested. We affirm.
Rebecca Lee and her husband, Johnny, lived together with Rebecca's two daughters. Johnny had been to prison several times and supported the family by manufacturing methamphetamine and selling it. Appellant used drugs with her daughters and, according to at least one witness, engaged in sexual acts with her husband and her daughter Candice.
On May 9, 2003, Johnny and Rebecca killed Candice by injecting her with a large quantity of methamphetamine. According to the medical examiner, Candice, a slight fifteen year old girl, had enough amphetamine and methamphetamine in her system to kill four 150 pound men. She also had a minor wound to her arm where the drugs were injected and finger shaped marks near the injection point that were consistent with her arm being held forcibly. She also had numerous scrapes, cuts, and bruises, although none of them were life threatening injuries.
Elton Reece is a drug user, and he testified that he went to the Lee home early in the morning on May 9, 2003 to buy methamphetamine. He heard fighting or commotion in a back bedroom, and then saw Candice run out of the bedroom and out of the house. Johnny and Appellant chased her, and Candice tried to hide under a truck. Johnny pulled her from under the truck and took her back to the back bedroom. After a short time, Johnny emerged and told Elton that he thought Candice was dead. Appellant emerged and said that she told Johnny it was "too much," and Johnny responded, "I didn't mean to."
Hours later, Appellant called the police and reported that Johnny had found Candice under a truck outside the home, that they had brought her inside, and that Candice was dead. At trial, two of Appellant's acquaintances testified that Appellant had admitted injecting Candice with methamphetamine the night she died, and one witness said Appellant showed her the puncture mark on Candice's arm at her funeral service. The funeral service was conducted before the autopsy and before the cause of death was known to law enforcement. Appellant's defense at trial was that she went to sleep the evening of May 8, 2003 and awoke to find her daughter dead. The jury disbelieved her, found her guilty as charged, and assessed punishment at imprisonment for life. This appeal followed.
In her first and seventh issues, Appellant asserts that she received ineffective assistance of counsel. Specifically, she complains that her attorney should have sought to sever her trial from Johnny's and that her attorney did not properly investigate her background or present mitigating evidence at her punishment hearing.
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; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An ineffective assistance of counsel claim is not reviewed for isolated or incidental deviations from professional norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
The second step requires the appellant 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 show that there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We begin with the strong presumption that counsel's conduct falls with the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume counsel's actions and decisions were reasonable and were motivated by sound trial strategy. See id. Appellant has the burden of proving both prongs of an ineffective assistance of counsel claim. See id.
Generally, we review a trial court's denial of a motion for new trial under an abuse of discretion standard. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). We review the ultimate question of prejudice de novo, but the trial court's decision is afforded deference on any underlying factual determinations. Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). When no express fact findings are made by the trial court, as is the case with rulings on motions for new trial,1 we may "impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record." Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004).
Appellant first argues that her attorney should have sought to sever her trial from Johnny's trial. Article 36.09 of the Texas Code of Criminal Procedure provides that a court is to sever the trial of two codefendants if there is prejudice to one of them from the joinder or if there is a "previous admissible conviction against one defendant." TEX. CODE CRIM. PROC. ANN. art. 36.09 (Vernon 2006); see also Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006). In her brief, Appellant argues that she was prejudiced because Johnny had four prior felony convictions and because there was a "concern" that one of the codefendants would say something implicating the other party. At oral argument, Appellant also argued that she had a right to severance, irrespective of prejudice, because of Johnny's prior felony convictions.
Appellant's attorney testified at a hearing on a motion for new trial that it was Appellant's decision not to seek to sever the trial and that it was his strategy to leave the two cases together because he felt the comparison to Johnny favored Appellant, in part because she had no prior convictions. The decision not to seek severance, even if the trial court would have been obligated to grant the motion, is a purely tactical decision. See Woods v. State, 998 S.W.2d 633, 635 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). In Woods, the court of appeals used as an example a defendant who might find it "advantageous to be tried along with a co—defendant with a criminal record because the contrast in culpability or involvement between the two defendants favors a strategy of allowing the jury to focus on the co—defendant, rather than the alternative of being tried alone." Id. at 636. Counsel perceived himself to be in just such a situation. Because of the physical evidence, the jury was likely to believe that at least two people worked together to kill Candice, and the likely conclusion would be that it was some combination of Elton Reece, Johnny, and Appellant who were responsible for Candice's death. Appellant had no criminal record and her attorney thought it advantageous for her to be tried along with Johnny, who had been convicted of several felonies. This was a reasonable course of action. Their defenses were not mutually antagonistic; both testified that they were asleep when Candice was killed. Neither implicated the other in their respective testimonies or in their statements to the authorities.
With respect to the deficient performance part of our analysis, our inquiry of trial counsel's strategic decisions is made without the benefit of hindsight. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Even with the benefit of hindsight, Appellant can point to no prejudice she suffered other than the surmise that her life sentence had something to do with her being on trial with her husband and one statement made by her attorney in summation that is subject to different interpretations and does not indicate that she was prejudiced.2
Appellant presented this claim at the hearing on her motion for new trial. The trial court denied the motion for new trial. Appellant does not claim that she wished for her trial to be severed from Johnny's and that her attorney refused to do so. If the trial court believed that Appellant agreed not to seek a severance, as her attorney testified, that would support the trial court's ruling irrespective of prejudice. Even if Appellant delegated the decision to her attorney, counsel's decision not to seek severance in light of the circumstances presented was a reasonable one, his strategic decision was within the broad range of objectively reasonable representation, and Appellant has shown no prejudice.
Appellant's second argument is that counsel did not provide effective representation because he failed to present evidence during the punishment phase of the trial and he did not do a reasonably thorough investigation of the case that could have been presented during the punishment phase of the trial.
Appellant's counsel testified that it was his intention to put Appellant on the stand during the punishment phase. He also testified that he changed his mind because she was becoming angry with the prosecutor and he was apprehensive about what would happen...
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