Wheeler v. State, 01-13-00286-CR

• Decision Date: 27 March 2014
• Docket Number: NO. 01-13-00287-CR,NO. 01-13-00286-CR,01-13-00286-CR,01-13-00287-CR
• Parties: CHRISTIAN EUGENE WHEELER, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Court of Appeals of Texas

CHRISTIAN EUGENE WHEELER, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-13-00286-CR

NO. 01-13-00287-CR

Court of Appeals For The First District of Texas

Opinion issued March 27, 2014

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Court Case Nos. 12-09-09602-CR-CTI & 12-09-09602-CR-CTII

OPINION

Appellant, Christian Eugene Wheeler, pleaded guilty without an agreed recommendation as to punishment to the first-degree felony offense of possessionwith intent to deliver between four and two hundred grams of a controlled substance, methamphetamine, and to the state jail felony offense of theft of a firearm.¹ The trial court assessed punishment at confinement for twenty years and confinement for six months, respectively, to run concurrently. In one issue, appellant contends that his trial counsel rendered constitutionally ineffective assistance at his sentencing hearing by (1) failing to object to the State's repeated use of leading questions when examining one of the detectives and (2) failing to object to the State's and the detective's characterization of one of the firearms recovered during the search of appellant's residence as a machine gun.

We affirm.

Background

The State charged appellant with the offenses of possession of a controlled substance with intent to distribute and theft of a firearm, arising out of a raid of his trailer home by Montgomery County Sheriff's Department ("MCSD") officers.²Appellant pleaded guilty to both offenses without an agreed recommendation on punishment. The trial court accepted appellant's guilty plea and set the sentencing hearing for a later date to allow for the preparation of a presentence investigation report.

MCSD Detective S. Spiller testified at the sentencing hearing. Detective Spiller testified that in the course of investigating appellant officers discovered that he was trafficking narcotics from his residence. On August 23, 2012, after approximately six months of investigation, officers executed a search warrant for appellant's trailer. Detective Spiller testified that ten people, including appellant, were inside the trailer at the time of the search. According to Detective Spiller, officers recovered approximately thirty-five grams of methamphetamine, pills, drug paraphernalia, cash, cell phones, surveillance cameras, and multiple firearms from the trailer.

Defense counsel did not object to the State's use of allegedly improper leading and argumentative questions throughout the examination of Detective Spiller. For example, the State asked Detective Spiller:

[The State]: And was [the search] done in midafternoon on a hot Thursday afternoon in Montgomery County, Texas?

[Det. Spiller]: That is correct.

[The State]: Was this done at a time where most people should have been working or doing something other than laying in a trailer getting high on meth?

[Det. Spiller]: That is correct.

The State later asked, "And were the ten people that you observed [in the trailer] in various physical states, no shirts on, consistent with what you had seen, people laying around, multiple people on couches, beds, et cetera, consistent with a den—a dope house?" Detective Spiller responded, "That is correct." On appeal, appellant identified over thirty other instances in which the State asked Detective Spiller leading and argumentative questions yet defense counsel did not object.

When asked by the prosecutor what types of firearms the officers recovered during the search, Detective Spiller stated, "There were several long guns, which were rifles, sawed-off shotguns. We came across a machine gun, handgun, several handguns, ammunition in various places. The firearms were loaded, most of them." The prosecutor then showed Detective Spiller State's Exhibit 24, which depicted several of the recovered firearms, and asked her, "[D]oes this look like an Uzi here in the top left corner?" Detective Spiller responded, "Yes. That's a machine gun." Both of these statements referred to a Cobray M-11 firearm. Defense counsel did not object to the State and Detective Spiller characterizing this weapon as a "machine gun."

During closing argument, defense counsel argued that the prosecutor wanted to put appellant in prison instead of allowing him to complete a drug rehabilitation program. The prosecutor responded,

It ain't about me. I don't want it to be about me. I want it to be about the people of this county. I want it to be about law enforcement when they risk their necks to go into a house where everybody—or at least this Defendant—is armed to the hilt with automatic machine guns.

Defense counsel did not object to this reference to "machine guns." The prosecutor did not mention "machine guns" again during the remainder of his closing argument. The only other reference to a machine gun occurred when the trial court mentioned the presence of a machine gun as it addressed appellant before assessing his punishment.

The trial court ultimately assessed punishment at twenty years' confinement for the possession with intent to distribute offense and six months' confinement for the theft of a firearm offense, to run concurrently. Appellant filed a motion for new trial but did not raise ineffective assistance of counsel as a basis for granting a new trial. Appellant's motion for new trial was overruled by operation of law, and this appeal followed.

Ineffective Assistance of Counsel

In his sole issue, appellant contends that his trial counsel rendered constitutionally ineffective assistance by failing to object to (1) the State's repeated use of leading questions when questioning one of the detectives and (2) the State's and the detective's characterization of one of the firearms recovered during the search of appellant's residence as a machine gun.

A. Standard of Review

To establish that trial counsel rendered ineffective assistance, an appellant must demonstrate, by a preponderance of the evidence, that (1) his counsel's performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different but for his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). The appellant's failure to make either of the required showings of deficient performance and sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.").

The appellant must first show that his counsel's performance fell below an objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires the appellant to demonstrate prejudice—"a reasonable probability that, but for his counsel's unprofessional error, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonableprobability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and, therefore, the appellant must overcome the presumption that the challenged action constituted "sound trial strategy." Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review is highly deferential to counsel, and we do not speculate regarding counsel's trial strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail on an ineffective assistance claim, the appellant must provide an appellate record that affirmatively demonstrates that counsel's performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate alleged ineffectiveness).

In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Mallett, 65 S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct. 1690, 1694 (2003) ("If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reason for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel'salternatives were even worse. The trial record may contain no evidence of alleged errors of omission, much less the reason underlying them."). Because the reasonableness of trial counsel's choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his actions before a court reviews the record and concludes that counsel was ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

B. Failure to Object to Leading Questions

Unless a witness is a hostile witness, an adverse party, or a witness identified with an adverse party, leading questions should not be used on direct examination "except as may be necessary to develop the testimony of the witness." TEX. R. EVID. 611(c); Young v. State, 10 S.W.3d 705, 713 (Tex. App.—Texarkana 1999, pet. ref'd). "Leading questions are questions that suggest the desired answer, instruct the witness how to answer, or put words into the witness's mouth to be echoed back." Tinlin v. State, 983 S.W.2d 65, 70 (Tex. App.—Fort Worth 1998, pet. ref'd). Leading questions may, however, be...