Melancon v. State

• Decision Date: 21 November 2001
• Docket Number: No. 14-98-00204-CR.,14-98-00204-CR.
• Citation: 66 S.W.3d 375
• Parties: Albert Joseph MELANCON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

66 S.W.3d 375

Albert Joseph MELANCON, Appellant, v. The STATE of Texas, Appellee.

No. 14-98-00204-CR.

Court of Appeals of Texas, Houston (14th Dist.).

November 21, 2001.

Rehearing Overruled February 21, 2002.

Ronnie G. Harrison, Houston, for appellants.

Alan Curry, Houston, for appellees.

EN BANC court consists of Justices YATES, ANDERSON, HUDSON, FOWLER, EDELMAN, FROST, MURPHY,^* AMIDEI,^** WITTIG,^*** and BAIRD.^†

MAJORITY OPINION ON REHEARING EN BANC.

RICHARD H. EDELMAN, Justice.

The State's motion for rehearing en banc is granted, the majority and dissenting opinions issued in this case on September 21, 2000, are withdrawn, and the following majority, concurring and dissenting, and dissenting opinions are issued in their place.

Albert Joseph Melancon appeals his conviction for aggravated robbery¹ on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial court erred in (a) failing to sustain appellant's objections or grant a mistrial with regard to the prosecutor's closing arguments; and (b) its efforts to break the jury deadlock. We affirm.

Ineffective Assistance

The first four of appellant's nine points of error contend that he received ineffective assistance of counsel because his trial counsel failed to: (1) subpoena an available alibi witness; (2) investigate the identity and availability of other witnesses who could corroborate appellant's alibi; and (3) question other available witnesses who could possibly support appellant's misidentification defense.

To prevail on a claim of ineffective assistance of counsel, an appellant must show, first, that counsel's performance was deficient, i.e., it fell below an objective standard of reasonableness, and, second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.App.2000). To be sustained, an allegation of ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim. App.1996). In reviewing an ineffectiveness claim, a court need not determine whether counsel's performance was deficient if it is easier to dispose of the challenge based on lack of prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

A defendant is not entitled to perfect or errorless counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim. App.1992). Moreover, in reviewing ineffectiveness claims, scrutiny of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.²

A motion for new trial is a prerequisite to presenting a point of error on appeal where it is necessary to adduce facts not in the record. Tex.R.App. P. 21.2. A trial court's ruling denying a defendant's motion for new trial is reviewed for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App.2001).³

Failure to Subpoena Witness

During trial, appellant presented evidence of the defenses of alibi and misidentification through a single witness, appellant's girlfriend, Ava Germany. Appellant claims his trial counsel was ineffective in failing to also subpoena Rita Hearn⁴ to corroborate Germany's alibi testimony.

According to the testimony of appellant's trial counsel at the motion for new trial hearing (the "hearing"), Hearn had agreed to testify on appellant's behalf when trial counsel spoke with her the weekend before trial. At the time, counsel saw no reason to subpoena Hearn because, both times they spoke, she told him "very emphatically" that she would be at trial. To overcome any transportation obstacles, trial counsel arranged a taxicab to transport Hearn, Germany, and appellant's mother to a location near counsel's home from which counsel planned to drive them to the trial court. However, when the cab arrived at the designated location, Hearn was not in it. Despite considering her an important witness and being told that she was working at a restaurant that day, counsel made no further attempt to secure her presence at trial or to request a continuance because of her absence.

Granting appellant a new trial for trial counsel's failure to subpoena Hearn would be justified, if at all, only if it were shown that Hearn's testimony, i.e., if given at a new trial, could indeed be helpful to appellant.⁵ However, despite contending that Hearn was so important a witness that the failure to subpoena her at trial was ineffective assistance, appellant presented no affidavit from Hearn with his motion for new trial and offered no testimony from her at the hearing or otherwise. Instead, evidence of the content of the testimony Hearn could purportedly have provided was limited to defense counsel's conclusory testimony at the hearing that "Miss Hearn, to a certain extent, corroborated Ava Germany's testimony." Although defense counsel also testified in the abstract at the hearing that he believed Hearn's testimony would have helped the defense and that she was an important witness, he did not state, and the record of the hearing does not otherwise contain, a single fact to which Hearn could testify about the events in question (or even showing that Hearn was ever in a position to possess any relevant knowledge).⁶ Without a record reflecting what facts, if any, Hearn could have actually provided, prejudice from counsel's failure to subpoena her was not shown by trial counsel's global and unsubstantiated characterizations that Hearn, to an extent, corroborated Germany, or that Hearn's testimony would have helped the defense.⁷ Therefore, the trial court did not abuse its discretion by denying appellant's motion for new trial, and appellant's first point of error is overruled.

Failure to Investigate and Call Other Witnesses

Appellant's second point of error claims that he received ineffective assistance because his counsel failed to investigate the identity and availability of Michelle Driver, Tamala Driver, and Patrice Brock as alibi witnesses. Appellant's trial counsel testified at the hearing that he was aware of these witnesses but his attempts to contact them were unsuccessful because they had moved from their previous residences and he had no leads on where they lived. Counsel further testified that he did not ask his investigator to locate these witnesses because he had no leads on them.

Because the record again contains no evidence of what testimony the alleged witnesses could have provided (not even defense counsel's assessment of its value), it is not possible to determine whether the witnesses could have supplied facts that would have supported appellant's position on his alibi defense or otherwise. Accordingly, appellant's second point of error also fails to show harm and is overruled.

Appellant's third point of error claims his trial counsel provided ineffective assistance by failing to call as a witness Kenneth Driver, who was present at trial because he had been subpoenaed by the prosecution. Although Driver did not testify at trial, he testified at the hearing that he was in the apartment during the robbery and clearly saw the two robbers, whose faces were mostly covered. However, Driver testified that he did not believe either robber was appellant because of their other physical differences from appellant, whom Driver described as his best friend.

Appellant's trial counsel testified at the hearing that he had spoken to Driver at least three times and intended to elicit testimony from Driver but later made a conscious decision not to do so because: (1) the favorable testimony Driver could have provided came out through a police officer's testimony; (2) Driver could have been cross-examined on the State's theory that he was part of a conspiracy with appellant to commit the robbery; and (3) any favorable testimony Driver could have provided would have been undermined by cross-examination revealing that he had a prior felony conviction. In light of these considerations and the deference we must afford strategic decisions made by trial counsel, appellant's third point of error does not demonstrate that the decision not to call Driver to testify fell below an objective standard of reasonableness. Accordingly, the third point of error is overruled.

Appellant's fourth point of error contends that the foregoing conduct of his trial counsel, in the aggregate, deprived him of effective assistance of counsel. Although a number of errors can be found harmful in their cumulative effect, non-errors may not, in their cumulative effect, amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999). Because appellant has demonstrated no deficient performance by his trial counsel, there can be no cumulative error or harm. Accordingly, his fourth point of error is overruled.

Jury Argument

Appellant's fifth point of error asserts that the trial court erred by overruling his objection and denying his request for a mistrial in response to the following argument by the prosecutor:

[Prosecutor]: [W]hat happened on that night is that Kenneth Driver was home alone with [Alicia Johnson]. Kenneth Driver is the boyfriend of Tarauniqui's sister. Of course, Tarauniqui would mention something about her savings to her family members. Okay. Perhaps her sister let it slip one day that they were saving money.

[Defens...