Petersen v. State
| Decision Date | 14 April 2022 |
| Docket Number | 06-21-00080-CR |
| Parties | JOHN ALFRED PETERSEN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
Date Submitted: January 19, 2022
On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29259
Before Morriss, C.J., Stevens and Carter, [*] JJ.
After a jury found John Alfred Petersen guilty of criminal mischief over $2, 500.00, but less than $30, 000.00, he was sentenced to one year's confinement in a state jail and assessed a fine of $3, 300.00. On appeal, Petersen contends that he received ineffective assistance of counsel because his counsel (1) refused to strike a hostile panel member during jury selection, (2) failed to hold the State to its burden of proving felony jurisdiction, (3) failed to challenge the admissibility of extraneous-offense evidence, (4) failed to object to the admissibility of the statements he made while in custody, and (5) failed to challenge the State's punishment evidence.[1] Because we find that Petersen did not receive ineffective assistance of counsel, we affirm the trial court's judgment.
I. Background
On March 4, 2021, Cara Welch was parked in the "parent pickup" line at Crockett Intermediate School in Paris Texas, waiting to pick up her child. Her son, Carter, was also in the vehicle with her. Welch explained, with his motorized wheelchair.[2] Welch said that, when she rolled down her window to see what had happened, Petersen's back was to her vehicle. For a moment, Welch thought that Petersen might have accidentally backed into her. Welch asked Petersen if he knew that he had hit her vehicle. Petersen informed her that he did, in fact, know that he had hit her car and that he would keep running into her until she moved her vehicle. When Welch asked Petersen what he meant, Petersen told her that she was blocking the crosswalk. Welch told Petersen that there was room on the sidewalk for him to pass. In response, Petersen again hit her vehicle with his wheelchair.
According to Welch, Petersen ran into her vehicle at least ten times.[3] Welch said, Welch also explained that she was afraid to exit her vehicle to speak with Petersen, so she contacted 9-1-1 and asked for police assistance.
At some point during the incident, another individual exited his vehicle and asked Petersen why he was hitting Welch's car with his wheelchair. According to Welch, Petersen said "[S]he won't move." Welch said that, because of her position in the pick-up line, she believed she was unable to move her vehicle. At that point, the same individual tried to help Welch move her vehicle. Welch explained, "When I put my car into drive and started to move up [an] inch, I look in my rear view and Mr. Petersen is already headed down the sidewalk toward Lamar." Welch said that, as a result of Petersen's actions, the right fender of her vehicle was damaged, and the repair costs amounted to $3 323.79.[4]
On cross-examination, Welch stated that neither she nor her child was physically injured during the incident. However, Welch said that her child had been "emotionally injured" and that she had set up counseling services for him. According to Welch, Petersen's actions had been deliberate.
Cynthia Johnson, who was also at the school to pick up her grandchild, recorded the incident on her cell phone.[5] Johnson said that Welch could not move her vehicle because "everybody [was] kind of right up on the other person."
On March 4, 2021, Jeremy Helms, an officer with the Paris Police Department, responded to a disturbance at Crockett Intermediate School. Helms said that, when he arrived at the school, another officer asked him to try to locate the "subject in the wheelchair." Helms quickly located Petersen and asked him about the "reports of him ramming his wheelchair into a car." Petersen advised that "they were parked in his road -- or sidewalk." Petersen admitted that he ran his wheelchair into Welch's vehicle.[6] Helms informed Petersen that it was illegal for him to run his wheelchair into Welch's vehicle even if he believed that she was illegally parked. According to Helms, towards the end of his conversation with Petersen, Petersen threatened to go back to the school and "do it again." Regardless, at that juncture, it was determined that Petersen would not be placed under arrest. Yet, Helms told Petersen that Welch would be making a report of the incident. Petersen then left in his wheelchair, and Helms returned to his patrol car and drove away.[7] II. Applicable Law
As many cases have noted, the right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prevail on a claim of ineffective assistance of counsel, a defendant is required to satisfy the two-pronged test set forth by the United States Supreme Court. See Strickland v. Washington, 466 U.S. 668, 687- 88 (1984); see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "This measure of deference, however, must not be watered down into a disguised form of acquiescence." Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987) (orig. proceeding) ( ineffective assistance where counsel failed to request medical records and relied on court-appointed competency examination when he knew client had escaped from mental institution).
The second Strickland prong, often called "the prejudice prong," requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "A reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. Thus, to establish prejudice, an applicant must show "that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable." Id. at 687. It is not sufficient for applicant to show "that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show that "there is a reasonable probability that, absent the errors, the fact[-]finder would have had a reasonable doubt respecting guilt." Id. at 695.
The appellant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Allegations of ineffectiveness must be based on the record, and the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268-69 (Tex. Crim. App. 1999). The reviewing court must look to the totality of the representation, and its decision must be based on the facts of the particular case, viewed at the time of counsel's conduct so as to eliminate hindsight bias. Strickland, 466 U.S. at 690. In all cases, the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding." Id. at 696; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding).
A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). “[A]llegation[s] of ineffectiveness must ‘be firmly founded in the record.'” Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813). The Strickland test “of necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring in judgment)).
When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the record "is in almost all cases inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Even so, "when no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did." Id. Moreover, when the reviewing court "can conceive potential reasonable trial strategies that counsel could have been pursuing," the court "simply cannot conclude that counsel has performed deficiently." Id. at 103. Essentially, when a party raises an ineffective assistance of counsel claim for the first time on direct appeal, the defendant must show that, "under prevailing professional norms," Strickland, 466 U.S. at 690, no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do, Andrews, 159 S.W.3d at 102.
III. Analysis
In his first point of error, Petersen maintains that his trial counsel was ineffective because he failed to use a preemptory challenge, or to challenge for cause, for a jury panel member who ...
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