Tutt v. State

• Decision Date: 24 August 2011
• Docket Number: No. 06–10–00183–CR.,06–10–00183–CR.
• Parties: James David TUTT, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

339 S.W.3d 166

James David TUTT, Appellant,

v.The STATE of Texas, Appellee.

No. 06–10–00183–CR.

Court of Appeals of Texas, Texarkana.

Submitted Feb. 23, 2011.Decided March 11, 2011.Discretionary Review Dismissed Aug 24, 2011.

Jimmie L. Brown, Jr., Houston, for appellant.Ryan Chambers, Asst. Dist. Atty., Nacogdoches, for appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

James David Tutt appeals his conviction for one count of possession of a controlled substance and one count of felony DWI, enhanced by two prior felonies.¹ Tutt complains his lawyer was ineffective, the trial court erred in denying his continuance motion, in failing to conduct a hearing on his lawyer's performance, and in allowing Tutt to represent himself. We affirm the judgment of the trial court.

I. Facts and Trial Procedure

Sergeant Robert Mobley, a patrol sergeant with the Nacogdoches Police Department, observed a vehicle being driven by Tutt fail to dim its high-beam headlights. Mobley initiated a traffic stop. During the investigation of the traffic offense, Mobley observed Tutt's speech was slurred,² detected the odor of alcohol coming from the inside of the vehicle, and observed that Tutt had glazed and bloodshot eyes. The passenger in the vehicle had an open can of Keystone Light beer. Tutt informed Mobley he had consumed one beer. While conversing with Tutt, Mobley detected the odor of alcohol on Tutt's breath. Mobley testified Tutt's performance on several field sobriety tests indicated he was intoxicated. After arresting Tutt, Mobley conducted a search of Tutt's person and discovered, in Tutt's front left pants pocket, a baggie containing a substance eventually determined to be cocaine. Tutt initially consented to give a breath sample and provided one breath sample. When requested to give a second breath sample,³ Tutt refused.

On the day of trial, Tutt filed a motion to dismiss his court-appointed counsel and requested a continuance to hire an attorney. Tutt alleged his court-appointed attorney had failed to properly investigate and had refused to file a motion which Tutt had requested be filed. The trial court refused to grant a continuance and informed Tutt that he could either proceed with his current court-appointed counsel or represent himself. The trial court strongly and repeatedly recommended that Tutt proceed with his court-appointed counsel. After being admonished by the trial court, Tutt orally elected to represent himself. Tutt also signed a written waiver of his right to counsel, but added the notation “need time for att.” The jury found Tutt guilty on both counts, and Tutt was sentenced to forty years' imprisonment for the felony DWI count and twenty years' imprisonment for the possession of a controlled substance count. On appeal, Tutt raises eight issues.⁴ Finding no merit to these issues, we affirm.

II. Effective Assistance of Counsel

In his first issue, Tutt complains his appointed trial counsel failed to render effective assistance of counsel prior to the commencement of trial. Specifically, Tutt alleges his appointed trial counsel

failed to (a) interview witnesses at the scene, as well as witnesses prior to the incident who would attest to Defendant's non-drinking status; (b) conduct discovery of the State's case; (c) investigate the breathalyzer, workings and/or malfunctions; (d) examine/investigate Defendant's defense of false positive as caused by energy drinks; (e) failed to obtain any medical records to determine intoxication and/or alcohol impairment from the point where the Appellant was taken to emergency for treatment of physical injuries; and/or (f) failed to meet, discuss and communicate with his client.

We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex.Crim.App.1986). To prevail on his claim, Tutt must show (1) his appointed trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001). An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

Tutt, though, has failed to direct this Court to any portion of the record of evidence that Tutt's appointed trial counsel failed to interview witnesses or otherwise investigate the State's allegations.⁵ “It is well-settled that any claim of ineffective assistance must be firmly founded in the record.” Flowers v. State, 133 S.W.3d 853, 857 (Tex.App.-Beaumont 2004, no pet.); see Thompson, 9 S.W.3d at 813. We will not presume, as requested by Tutt, that his appointed trial counsel's performance was deficient. “The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance.” Mallett, 65 S.W.3d at 63. We must presume, in the absence of contrary evidence, that trial counsel's performance was not deficient.

The failure to seek out and interview potential witnesses may be ineffective assistance of counsel when the inaction precludes the accused from advancing a viable defense. See Ex parte Duffy, 607 S.W.2d 507, 517 (Tex.Crim.App.1980), overruled on other grounds by Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App.1999); State v. Thomas, 768 S.W.2d 335 (Tex.App.-Houston [14th Dist.] 1989, no pet.). Tutt claims

the failure to investigate precluded the following from coming forward: (1) Pastor C.L. King, Bethel Temple Church of God, Martin Luther King Street, Nacogdoches, Texas and Kenneth Sweat, 1526 Looneyville, Nacogdoches, Texas who would have testified that he did not observe Appellant drinking on the day Appellant was arrested, that Appellant had quit drinking and drank energy drinks; (2) in addition to the two witnesses identified, the following were witnesses who were made known to Mr. Caldwell, but were not contacted by him: Stacy Roberts (Sweat's Cousin), Rickey Hooker—friend of the family, and Rodrick Duffy—father to Appellant's grandchild; (4) failure to subpoena from hospital records of treatment that evening—to determine (a) alcohol content and/or (b) intoxication/impairment; and (3) proper investigation would have revealed that consumption of energy drinks has been known to distort breathalyzer results.

We note that Kenneth Sweat, named above as a witness precluded “from coming forward,” did testify at trial. Tutt has failed to direct this Court to where in the record there is evidence the remaining potential witnesses were available to testify and evidence that their testimony would have benefitted the defense. To obtain relief on an ineffective assistance of counsel claim based on uncalled witnesses, the applicant must show that the witnesses were available to testify and that their testimony would have been of some benefit to the defense. Ex parte White, 160 S.W.3d 46, 52 (Tex.Crim.App.2004). We will not presume witnesses were available and would have benefitted the defense.

Tutt also claims his appointed trial counsel failed to ensure his client's decisions were based on correct information as to the applicable law. One of Tutt's complaints about his appointed trial counsel was that counsel refused to challenge as too remote Tutt's prior DWI convictions, which enhanced the offense to a felony. When Tutt raised the issue, Tutt's appointed trial counsel, who has a duty of candor to the court, informed the trial court that the law relied upon by Tutt “was repealed by the legislature.” ⁶ This statement indicates Tutt's appointed trial counsel was aware of Tutt's complaints and had obviously communicated with Tutt. An attorney cannot be found deficient because a client refuses to believe his or her legal advice. The record does not demonstrate Tutt's appointed trial counsel failed to communicate with Tutt. The first prong of Strickland has not been satisfied. In the absence of evidence to the contrary, we must presume counsel's performance fell within the range of reasonable professional assistance.

In addition to failing to satisfy the first prong of Strickland, Tutt has made no effort to show this Court that he suffered any prejudice as a direct result of any of the above-referenced alleged deficiencies. Tutt has wholly failed to satisfy the second prong of Strickland. The record before us has been inadequately developed. For these reasons, we overrule Tutt's first point of error.

III. The Motion for Continuance

Tutt argues, in his second issue, that the trial court abused its discretion in denying his motion for continuance to obtain retained counsel. On the day set for trial, Tutt requested a continuance orally and in a written, but unsworn, “motion to dismiss” his appointed trial counsel.

A motion for continuance must be written and “sworn to by a person having personal knowledge of the facts relied on for the continuance.” Tex.Code Crim. Proc. Ann. art. 29.08 (Vernon 2006). The Texas Court of Criminal Appeals has held that the statutes require a sworn motion to preserve appellate review from a trial court's denial of a motion for a continuance. Anderson v. State, 301 S.W.3d 276, 279 (Tex.Crim.App.2009). By failing to file a sworn written motion for continuance, Tutt forfeited his right to complain about the trial court's ruling and we have nothing to review. The second issue is overruled.

IV. Duty to Conduct a Hearing

In his third and fourth points of error, Tutt contends the trial court erred in failing to hold a formal evidentiary hearing when Tutt alleged his appointed trial counsel failed to...