Weaver v. State

• Decision Date: 15 September 1999
• Docket Number: No. 10-98-273-CR,10-98-273-CR
• Citation: 999 S.W.2d 913
• Parties: (Tex.App.-Waco 1999) ALANDUS WEAVER, Appellant v. THE STATE OF TEXAS,
• Court: Texas Court of Appeals

Page 913

999 S.W.2d 913 (Tex.App.-Waco 1999)

ALANDUS WEAVER, Appellant v. THE STATE OF TEXAS,

No. 10-98-273-CR

IN THE TENTH COURT OF APPEALS

September 15, 1999

From the 13th District Court Navarro County, Texas Trial Court # 26,677

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray

O P I N I O N

TOM GRAY, Justice

Was the defendant's trial counsel ineffective? This was the sole question before the trial court at a motion for new trial. The burden rests upon the appellant to rebut the presumption that counsel was effective. Because that presumption was not overcome at the hearing, the trial court did not abuse its discretion in denying the motion for new trial. Thus, we will affirm the judgment of the trial court.

BACKGROUND

Alandus Weaver was charged with theft by intentionally appropriating current money of the United States of America and Food Stamp benefits with a value of over $1,500 but less than $20,000. Central to his case was the issue of whether Weaver was actually living with a woman, contrary to his application for welfare benefits wherein he stated that the only persons living in his home were himself and two children. A jury found Weaver guilty of theft of over $1,500 and under $20,000. He was sentenced to serve two years in prison, a fine of $750.00, and to pay $2,900 in restitution. Rather than serve the prison time, Weaver was put on five years community supervision and sentenced to serve only 120 days in prison. Weaver filed a motion for new trial on the basis of ineffective assistance of counsel. After a full evidentiary hearing, the trial court overruled the motion.

APPEAL

Weaver appeals the denial of his motion for new trial. He asserts that the trial court erred in denying his motion for new trial because his trial counsel's performance was deficient. He argues that the deficient performance of trial counsel prejudiced his defense, and that there is a reasonable probability that the result would have been different without these errors. Weaver argues that his trial counsel was deficient in several ways. First, he alleges that trial counsel was deficient because he filed pre-trial discovery, but failed to request a hearing or get a ruling on any of the motions filed.

Additionally, Weaver argues that counsel was ineffective because he failed to make an independent investigation of the facts of the case or to interview potential witnesses. According to Weaver, he gave his attorney several names of friends who could testify that he was not living with a woman at the time he was receiving welfare, but his attorney failed to contact or call to trial any of these potential witnesses. He also asserts that the prosecution gave his attorney a list of 10-12 names of witnesses, but his attorney only contacted three or four of the persons on this list.

Finally, Weaver argues that counsel was ineffective because he failed to strike prospective jury members he could reasonably have known would be prejudiced against him. Weaver asserts that the jury consisted of twelve members, three of whom were prejudiced against him or his defense. According to his brief, the Chief of Police of Rice, the father or father-in-law of an assistant district attorney, and the cousin of the bailiff were sitting on the jury panel. Weaver argues that because his attorney did not ask any questions directly concerning panel members' involvement with law enforcement, and because he used only six of his ten available peremptory strikes, he was denied an impartial jury.

MOTION FOR NEW TRIAL

Standard of Review

Ineffective assistance of counsel may be raised in a motion for new trial. State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993); Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Because the decision on a motion for new trial rests within the sound discretion of the trial court, the standard of review on appeal is whether the trial court abused its discretion. In the absence of an abuse of discretion, appellate courts are not justified in reversing the judgment. Gonzalez, 855 S.W.2d at 696; Appleman v. State, 531 S.W.2d 806, 810 (Tex. Crim. App. 1975); Hill v. State, 480 S.W.2d 670, 673 (Tex. Crim. App. 1972). In considering a motion for new trial, the trial court possesses broad discretion in assessing the credibility of witnesses and in weighing the evidence to determine whether a different result would occur upon retrial. Messer v. State, 757 S.W.2d 820, 827-828 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd).

Test for Ineffective Assistance of Counsel

The proper standard to decide claims of ineffective assistance of counsel under the Sixth Amendment is the test adopted by the Supreme Court in 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 (Tex. Crim. App. 1986). The Strickland court adopted a two-pronged analysis for claims of ineffective assistance under which the defendant must show that (1) counsel's performance was deficient, to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment; and (2) counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). An appellant is required to prove that counsel's representation fell below an objective standard of reasonableness based upon prevailing norms and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome of the proceedings. Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App.), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). This two-pronged test is the "benchmark for judging ... whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." McFarland, 845 S.W.2d at 842-845.

This standard has never been interpreted to mean that the accused is entitled to perfect or errorless counsel. Id. at 843; Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Generally, isolated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel's performance for examination. McFarland, 845 S.W.2d at 843.

In establishing ineffective assistance of counsel, the burden is on the defendant and it must be proved by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). Further, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995). The defendant must overcome the presumptions that counsel was effective and that the challenged action or omission "might be considered sound trial strategy." Id. (quoting Strickland). We are hesitant to second-guess an action of the attorney that might have been valid trial strategy at the time. We do not view trial counsel's performance with hindsight. See Delrio v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. Owens v. State, 916 S.W.2d 713, 717 (Tex. App.-Waco 1996, no pet.).

Facts at the Hearing

Under the Texas Rules of Appellate Procedure, rule 33.1(a), in presenting a complaint for appellate review, it is a prerequisite that the record must show (1) a timely request, objection, or motion was made to the trial court stating the grounds for the complaint and (2) a ruling on the request, objection or motion or a refusal to rule coupled with an objection to such refusal. TEX. R. APP. P. Rule 33.1(a). The appellate courts of Texas, our own court included, have noted the inherent difficulty in bringing ineffective assistance of counsel claims where the record is often silent as to the very issues of concern. In most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim. Gonzalez v. State, 994 S.W.2d 369, 372 (Tex. App.-Waco 1999, no pet.). See also Jackson v. State, 877 S.W.2d 768, 772-773 (Tex. Crim. App. 1994) (Baird, J. concurring); Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (Benavides, J. dissenting). Weaver filed a motion for new trial in order to present his claim for review. The motion concerning the effectiveness of his trial counsel was heard by the trial court and the record of the hearing is properly before us. Thus, we are able to review a well developed record of Weaver's complaint.

At the motion for new trial, Weaver called two personal witnesses and his trial counsel.

Tina Cooks stated that she knew Alandus Weaver and that he was not living with a woman while receiving welfare benefits. She testified that she did not know Weaver's attorney by sight, but that she had spoken with his attorney at the courthouse for thirty minutes prior to giving her testimony. She also stated that she actually testified favorably for Weaver at trial.

Elaine Lewis also testified at the hearing. It was her testimony that she did not speak with Weaver's attorney before trial, but that she did testify favorably for Weaver whom she had known for more than sixteen years.

William L. Smith, trial counsel to Weaver, testified at the motion for...