State v. Gill

• Decision Date: 24 April 1998
• Docket Number: No. 03-97-00588-CR,03-97-00588-CR
• Parties: The STATE of Texas, Appellant, v. Michael Todd GILL, Appellee.
• Court: Texas Court of Appeals

Page 540

967 S.W.2d 540

The STATE of Texas, Appellant, v. Michael Todd GILL, Appellee.

No. 03-97-00588-CR.

Court of Appeals of Texas,

Austin.

April 24, 1998.

Stephen H. Smith, Dist. Atty., J. Bryan Clayton, First Asst. Dist. Atty., San Angelo, for Appellant.

Thomas J. Gossett, San Angelo, for Appellee.

Before YEAKEL, C.J., and KIDD and DAVIS, ^*JJ.

KIDD, Justice.

Appellee Michael Todd Gill was convicted on one count of aggravated assault and sentenced to serve twenty years in the state penitentiary. After judgment was rendered, Gill filed a motion for new trial on the ground of ineffective assistance of counsel. Following two evidentiary hearings, the motion for new trial was granted. In two points of error, the State argues that the trial court abused its discretion in granting Gill a new trial. We will affirm.

BACKGROUND

This case presents some very unique facts. Michael Todd Gill was indicted on two counts of aggravated assault for allegedly striking his girlfriend, Kimberly Cote, with a claw hammer on one occasion and burning her with a frying pan on a separate occasion. Following the indictment, Gill hired attorney Jack Bundrant to substitute for his court-appointed attorney. Gill stated to the court that he wanted Bundrant as his trial attorney despite Bundrant's past health problems and recent hospital stay for ongoing health problems.

Fearing the potential for a mistrial due to Bundrant's health, the State requested an in camera hearing to allow the court to reconsider its decision to substitute Bundrant as Gill's counsel. After Bundrant denied any lingering effects from his health problems and assured the trial court that he was capable of handling Gill's defense, the case proceeded to trial.

At the conclusion of the evidence, the jury returned a verdict convicting Gill on one count of aggravated assault for striking Cote with a claw hammer and sentenced him to twenty years in the state penitentiary. ¹ Judgment was rendered accordingly. Following the entry of judgment, Gill filed a motion for new trial on the ground of ineffective assistance of counsel. As discussed in more detail below, Gill asserted that Bundrant's poor mental and physical condition prevented him from effectively representing Gill at trial. Pursuant to Gill's motion, the court conducted two evidentiary hearings in which extensive medical records and testimony concerning Bundrant's health were reviewed by the court. Following these evidentiary hearings, the trial court, without stating a reason, granted Gill's motion for new trial. The State appeals.

DISCUSSION

It is well-established that the granting of a motion for new trial rests within the sound discretion of the trial court. See State v. Gonzalez, 820 S.W.2d 9, 12 (Tex.App.--Dallas 1991), aff'd 855 S.W.2d 692, 694 (Tex.Crim.App.1993). The ruling of a trial judge is presumed to be correct and the burden rests upon the appellant to establish the contrary. Lee v. State, 167 Tex.Crim. 608, 322 S.W.2d 260, 262 (1958). Furthermore, when no findings of fact or conclusions of law are made by the trial court, we uphold the judgment if any appropriate ground exists to support it. See State v. Read, 965 S.W.2d 74, 77 (Tex.App.--Austin 1998, no pet. h.).

In two points of error, the State argues that the trial court abused its discretion by failing to adhere to the well-established Strickland test governing claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a defendant establish by a preponderance of the evidence that (1) counsel's representation fell below the standard of professional norms, and (2) but for counsel's deficiency, there is a reasonable probability that the outcome would have been different. Id. The State contends primarily that this is an objective test which requires Gill to point to the record and identify specific acts or omissions by Bundrant that were below the professional norm of reasonableness and led to an improper verdict. The State therefore challenges this Court to review the record and find such an act or omission that would uphold the trial court's judgment in granting Gill a new trial.

Gill, on the other hand, argues that in a case of this kind, where the attorney's mental and physical condition are called into question, the trial court is allowed to consider factors which may or may not be apparent on the face of the record, but did render counsel ineffective. Therefore, Gill contends that the trial court had the discretion to grant a new trial if it determined that Bundrant's physical and mental deficiencies themselves resulted in defense counsel being ineffective.

The State's contention that Strickland is an objective test that requires the defendant to point out "legal errors" which exist on the record is not without merit. However, it fails to consider two important points governing our review of this order granting a new trial. First, we do not review the Strickland standards in a de novo fashion; we review them through the prism of an abuse of discretion standard. Therefore, we must examine whether the trial court's decision to grant a new trial was so outside the zone of reasonable disagreement that it is subject to reversal. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992) (if trial judge's decision is so clearly wrong as to lie outside zone within which reasonable persons might disagree then decision should be reversed).

Second, as stated above, because no findings of fact or conclusions of law were either requested or made by the trial court, the court's judgment granting a new trial must be upheld if any appropriate ground exists to support it. Read, at 77. We note that one such ground is that the trial court retains the sound discretion to grant a new trial if it believes a new trial is needed in the "interest of justice." See Gonzalez, 855 S.W.2d at 694 (trial judges have had discretion to grant new trials in interest of justice for more than one hundred twenty years); State v. Dixon, 893 S.W.2d 286, 288 (Tex.App.--Texarkana 1995, no pet.) (trial court did not abuse its discretion in granting new trial in interest of justice); State v. Lyons, 820 S.W.2d 46, 48 (Tex.App.--Fort Worth 1991, no pet.) (trial court retains discretion to grant new trial in the interest of justice, apparently on any ground justice requires). Having said this, we will now discuss whether the trial court erred in granting Gill a new trial.

In his brief, Gill alleges various "legal errors" by Bundrant which he contends support a claim of ineffective assistance of counsel. First, during voir dire, one potential juror indicated that he was hesitant to serve because he had a brother who worked for the prison system. The juror feared that if he were...