Muennink v. State

• Decision Date: 09 October 1996
• Docket Number: No. 04-95-00414-CR,04-95-00414-CR
• Citation: 933 S.W.2d 677
• Parties: Donald Leslie MUENNINK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 677

933 S.W.2d 677

Donald Leslie MUENNINK, Appellant, v. The STATE of Texas, Appellee.

No. 04-95-00414-CR.

Court of Appeals of Texas,

San Antonio.

Oct. 9, 1996.

Rehearing Overruled Oct. 30, 1996.

Richard Lee Urban, Boerne, for appellant.

Anton Hackebeil, District Attorney, Uvalde, Jim Vollers, Austin, for appellee.

Before CHAPA, C.J., and HARDBERGER and GREEN, JJ.

OPINION

HARDBERGER, Justice.

Appellant, Donald L. Muennink ("Muennink"), was convicted by a jury of aggravated assault. Muennink received a probated sentence of two years confinement. He appeals, contending that his trial counsel was ineffective, the trial court erred by excluding him from a pretrial proceeding, and he was denied his right to compulsory process for obtaining witnesses. We affirm the judgment of the trial court.

Facts

This case arose out of a dispute over a piece of land that was part of Muennink's father's estate. Muennink and his sister were co-tenants with the estate in this piece of land, and the assault took place on this tract. Muennink and his sister each owned a one-fourth undivided interest in the land where the assault occurred, and the estate owned a one-half interest.

The complainant, Salome Flores ("Flores"), worked for one of Muennink's relatives who had leased the land for farming purposes from the executor of the estate of Muennink's father. Muennink had objected to the lease given by the estate because all of the proceeds of the lease were going to the executor and the executor had made no distribution of those proceeds to Muennink or his sister. The dispute over the proceeds of the lease prompted the assault in this case.

On October 31, 1994, Flores was farming the land in question and was approached by Muennink. At Muennink's request, Flores left the property on that day. The next day, however, Muennink returned to the property. The evidence is conflicting as to what transpired during this encounter. Flores testified that Muennink approached him in the field and told him he had tried to be nice to him the day before, but that now he was "going to have it." According to Flores, Muennink then pulled a gun and pointed it at him, threatening Flores and threatening to blow the windows off a tractor on the land. Muennink denied pulling a gun on Flores on November 1st and testified that he threatened to handcuff Flores and arrest him if he did not leave. Muennink was a certified police officer and was carrying a gun.

Ineffective Assistance of Counsel

In his first and second points of error, Muennink asserts that his trial counsel was ineffective. In a claim that counsel provided ineffective assistance during the guilt-innocence phase of a trial, the defendant must show that counsel's performance was deficient and the deficiency prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994) (en banc). The defendant bears the burden of rebutting the presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. It is a difficult burden.

The operative standard for determining whether an accused has suffered a deprivation of his right to effective assistance of counsel is the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To establish ineffective assistance of counsel, a convicted defendant must show: (1) his trial counsel's performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Butler v. State, 872 S.W.2d 227, 241 (Tex.Crim.App.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995). A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Counsel's performance is judged by considering the " 'totality of the representation,' " not by isolated omissions or acts of the trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986) (en banc) (quoting Ex parte Raborn, 658 S.W.2d 602 (Tex.Crim.App.1983)), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). Counsel is not required to perform flawlessly, and ineffectiveness is not established solely by the fact that a different trial strategy may have been pursued by another attorney in hindsight. Ybarra v. State, 890 S.W.2d 98, 112 (Tex.App.--San Antonio 1994, pet. ref'd).

Muennink claims that his trial counsel was ineffective in that both of his trial attorneys: (1) failed to request a jury instruction regarding Muennink's protection-of-property defense under sections 9.41, 9.04, and 1.07 of the Texas Penal Code; (2) had a conflict of interest as material witnesses; (3) neglected to request that a record be made of various stages of the proceedings; and (4) failed to object when Muennink was asked to leave a pre-trial hearing on a motion to quash a subpoena. We will address each of these assertions in turn.

With respect to the omitted jury instruction, Muennink maintains that his trial counsel established during the trial that he had a right to lawful possession of the property on which the assault occurred, and that this evidence raised a statutory defense under sections 9.41 ¹, 9.04 ², and 1.07 OF THE TEXAS PENAL CODE³ that should have been presented to the jury. Taken together, these sections of the Penal Code provide that persons may use force or threats of force to defend property of which they have lawful possession against those that they reasonably believe to be trespassing or unlawfully interfering with the property.

The State argues that Muennink was not factually entitled to such a defensive justification. We agree. No evidence was presented at trial to show that the person at which the force or threat of force was directed, Flores, was either a trespasser or unlawfully interfering with Muennink's possession of the land. Muennink knew that Flores was on the property working for Muennink's relative who had leased the property from the executor of Muennink's father's estate. The estate had a one-half interest in the land. There is an absence of evidence that Muennink "reasonably believed" Flores was a trespasser or that he was unlawfully interfering with the property and that force was necessary to prevent or terminate a trespass or unlawful interference with the land. Muennink was apparently motivated by what he claimed to be incorrect distributions of lease payments concerning the land. Muennink's trial counsel could have logically concluded that there was no evidence from which the jury could find for Muennink upon submission of this issue.

Muennink further asserts that his trial counsel's assistance was ineffective because both of his trial attorneys had a conflict of interest in that they were material witnesses. This assertion is based on the fact that both attorneys had represented him in civil proceedings from which they had gained knowledge regarding his legal right to possession of the property. Muennink claims that the information his attorneys learned from representing him in the civil proceedings would have supported his defense if communicated to the jury in the form of an expert legal opinion. We cannot agree that these circumstances created a conflict of interest that rendered the assistance of Muennink's trial counsel ineffective. As the United States Supreme Court explained in Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), prejudice is shown in an ineffective assistance of counsel claim based on a conflict of interest when the defendant establishes that his trial counsel "actively represented conflicting interests" and that "a conflict of interest actually affected the adequacy of his representation." In this case, the fact that Muennink's attorneys could have testified in the form of expert legal opinions regarding his ownership interest in the land does not show that there was any breach of the duty of loyalty or a conflict of interest that adversely affected the attorneys' performance at trial. This case is distinguishable from the cases Muennink cites in his brief to this court. These cases involved potential conflicts of interest stemming from counsel's representation of codefendants with adverse interests. See Calloway v. State, 699 S.W.2d 824 (Tex.Crim.App.1985); Foster v. State, 693 S.W.2d 412 (Tex.Crim.App.1985); Ex parte Acosta, 672 S.W.2d 470 (Tex.Crim.App.1984); Ex parte Parham, 611 S.W.2d 103 (Tex.Crim.App.1981); Ex parte Alaniz, 583 S.W.2d 380 (Tex.Crim.App.1979) . Muennink's attorneys were not attempting to serve two masters; rather, they served only one master--Muennink. There is no evidence that a conflict existed.

Muennink next contends that his trial counsel's performance was deficient because his attorneys failed to request that the court reporter record voir dire, opening statements, a pre-trial hearing on a motion to quash a subpoena, and closing arguments. Muennink claims that he was harmed by counsel's failure to request a complete record in that he was (1) "denied ... any possibility of a meaningful appeal" and (2) cannot meet the test to show harm under his third point of error to this court, in which he argues that he was improperly excluded from a pre-trial hearing on a motion to quash. We cannot conclude that these omissions amounted to such serious errors so as to deprive Muennink of a fair trial under the Strickland standard. As this court has noted, "trial lawyers are not...