Mooney v. State

• Decision Date: 02 October 1991
• Docket Number: No. 69858,69858
• Citation: 817 S.W.2d 693
• Parties: Nelson Wayne MOONEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 693

817 S.W.2d 693

Nelson Wayne MOONEY, Appellant, v. The STATE of Texas, Appellee.

No. 69858.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 2, 1991.

Steve Hebert (court appointed), Baytown, for appellant.

Michael R. Little, Dist. Atty., Liberty, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

Appellant was convicted of a murder in the course of robbery. Tex.Penal Code Ann. § 19.03(a)(2). After the jury returned affirmative answers to the two issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071, the trial court imposed the sentence of death. ¹ Appeal to this Court is automatic. We will affirm.

Appellant does not challenge the sufficiency of the evidence. Therefore, we will only provide the facts necessary to address appellant's points of error.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant's first four claims, enumerated 1 A through 1 D, allege that he was denied effective assistance of counsel. ²

A.

His initial claim submits that "defense counsel failed to conduct a thorough investigation and preparation before [the] March 23, 1987 hearing." On the date in question, the trial court held a hearing on appellant's motion to dismiss prosecution pursuant the Interstate Agreement on Detainers, as codified in Tex.Code Crim.Proc.Ann. art. 51.14. ³

Appellant's first court-appointed attorney, Krueger, withdrew shortly after appointment based on appellant's refusal to speak with him. Appellant's second appointed attorney, Hight, eventually withdrew due to ongoing disagreements with appellant. While Hight was still representing appellant, on December 4, 1985, appellant signed a reset form including waivers under the Interstate Agreement on Detainers and the former Texas Speedy Trial Act. Appellant's attorneys at the hearing, Turner and Brown, submitted that appellant never realized that he had waived his rights pursuant to the Interstate Agreement on Detainers.

At the hearing, Turner and Brown introduced the indictment returned March 7, 1984 ⁴ and the detainer filed against appellant dated May 10, 1985, and asked the trial court to take judicial notice of the fact that the trial began on January 19, 1987. The State entered certified copies of the docket sheets and the reset order of December 4, 1985, which contains the waiver in question. The reset order was signed by the State, appellant, defense counsel and the trial judge.

At the hearing Krueger testified that he never discussed art. 51.14 with appellant. Hight, appellant's second court appointed attorney, testified that "to the best of his knowledge" he did not recall the waiver contained in the December 4, 1985 reset form. He did recall giving the form to appellant and instructing him to read it. According to Hight, appellant appeared to read the form in its entirety. Hight further testified that appellant had previously indicated that he did not want to waive his Interstate Agreement on Detainer rights. Hight concluded that "in all probability" he, appellant and the prosecutor had a discussion about either waiving the Interstate Agreement on Detainers or proceeding to trial. Hight noted that it was sound trial strategy to agree to a reset because he did not believe that he was ready to proceed to trial.

Appellant testified that he never intended to waive his art. 51.14 rights, and that Hight would not let him read the December 4, 1985 reset form.

Lastly, defense counsel Turner testified that he was appointed in April of 1986, and that sometime thereafter appellant alleged that there was some "trickery" in signing the December 5, 1985 waiver. The trial court denied the motion to dismiss.

To support a claim of ineffective assistance of counsel, appellant must prove both that counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). Absent both showings, it cannot be concluded that a defendant's conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Appellant's contention that counsel failed to conduct a thorough investigation prior to the March 23, 1987 hearing is without support from the record. Indeed, appellant's conclusional allegation fails to demonstrate how counsel erred in presenting, investigating and preparing for the hearing on the motion. Appellant fails to establish what, if anything, counsel could have learned from a more thorough investigation.

The record reflects that Turner and Brown vigorously pursued the motion to dismiss. Appellant's allegation fails to demonstrate that counsel was deficient. Strickland, 466 U.S. 668, 104 S.Ct. 2052; Hernandez v. State, 726 S.W.2d at 57.

B.

Secondly, appellant alleges that he was denied effective assistance of counsel due to counsel's failure to move to quash the venire. To support this claim, appellant points to the testimony of four of the panel members, Edwards, Tadlock, Jeffcote and Hall.

Veniremember Edwards testified that on the first day he was called to jury duty, he overheard a police officer stating that there were two other individuals besides appellant involved in the instant offense, and they had already been found guilty. Veniremember Edwards testified that the other panel members were scattered about the courtroom when the statement was made, and that no other veniremembers had heard this remark. Moreover, the trial court allowed defense counsel to recall all twenty-eight of the previously qualified veniremembers and to individually question each regarding whether they overheard the remark. No one other than Edwards heard the officer's remark. Finally, the record reflects that veniremember Edwards never sat upon the jury; he was successfully challenged for cause by the State.

Veniremember Tadlock testified that he had heard that there was a case that was going to be tried in Liberty County involving three men who had tied a man to a tree and shot him. Tadlock indicated that he was "not sure if this [was] the same case or not," and testified that he had no opinion concerning appellant's guilt. Tadlock testified that he had not heard any media reports on the case. The defense exercised a peremptory challenge to this veniremember; therefore, Tadlock did not sit on the jury.

Veniremember Hall indicated that he had previously seen a newspaper article that a jury was being selected to try two other individuals involved in the crime. He testified that he could disregard everything except the evidence presented at trial. The defense exercised a peremptory challenge to veniremember Hall.

Veniremember Jeffcote testified that he overheard "someone" say that the defendant "was guilty and that the jury ought to go ahead and execute him." Jeffcote told "the Deputy" what he had heard. Veniremember Jeffcote stated that the overheard remarks would not affect him. Jeffcote served on the jury.

Counsel were not deficient for failing to move to quash the panel because there is no evidence that the venire, as a whole, was biased against appellant. There is no evidence that Edwards, Tadlock, Hall or Jeffcote discussed what they had heard or read about appellant's case with any of the other veniremembers. In fact, trial counsel recalled and diligently requestioned each of the previously qualified veniremember about whether they had overheard any remarks about the case. The record demonstrates that the panel was not tainted. Kirkpatrick v. State, 515 S.W.2d 289 (Tex.Cr.App.1974). Counsel is not required to engage in the filing of futile motions. Kinnamon v. State, 791 S.W.2d 84 (Tex.Cr.App.1990) (failure to request charge on lesser included offense not deficient where evidence did not authorize submission of lesser included offense charge). Accordingly, counsel was not deficient for failing to move to quash the panel. Strickland, 466 U.S. 668, 104 S.Ct. 2052; Hernandez v. State, 726 S.W.2d at 57.

C.

Next, appellant alleges that he was denied effective assistance of counsel because counsel "failed to make proper and timely objections." To support this contention, appellant points to the voir dire of veniremember Hall.

Veniremember Hall, as noted previously, told the court that he had read a newspaper article stating that a jury was being selected in Liberty County for the trial of appellant's two accomplices. The trial judge questioned veniremember Hall regarding his ability to render a verdict based solely upon the evidence presented at trial. The prosecutor and defense counsel subsequently questioned Hall regarding the presumption of innocence. Veniremember Hall consistently indicated that he could base his verdict solely upon the evidence presented at trial. Pursuant to thorough defense examination, Hall stated that he did not remember any specifics about the article, that he had not formed any opinions or feelings about the case and that he would be able to put that article aside and not allow it to affect his deliberations. ⁵

Appellant submits that defense questioning of Hall regarding the article was "inadequate and [fell] short of the duty defense counsel owed appellant." There is no evidence in the record to support that conclusion. Appellant wholly fails to demonstrate either prong of the Strickland standard; that is, appellant has not shown that counsels' performance was deficient and that this deficiency prejudiced his defense. Strickland, 466 U.S. 668, 104 S.Ct. 2052.

Appellant next submits that counsel was ineffective for failing to object to the introduction of State's exhibit 29A during examination of Marvin Eugene Gates, appellant's co-defendant. Gates had previously pled guilty to murder in exchange for a sixty year sentence without an affirmative finding. Gates testified on behalf of the State in exchange for Oklahoma's McCurtain...