White v. State

• Citation: 999 S.W.2d 895
• Parties: (Tex.App.-Amarillo 1999) JAMES PAUL WHITE, Appellant v. THE STATE OF TEXAS, Appellee NO. 07-98-0122-CR
• Decision Date: 01 September 1999
• Court: Court of Appeals of Texas

Page 895

999 S.W.2d 895 (Tex.App.-Amarillo 1999)

JAMES PAUL WHITE, Appellant v. THE STATE OF TEXAS, Appellee

NO. 07-98-0122-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

SEPTEMBER 1, 1999

FROM THE CRIMINAL DISTRICT COURT NUMBER TWO OF TARRANT COUNTY; NO. 0602389D; HON. WAYNE F. SALVANT, PRESIDING

[Copyrighted Material Omitted]

Before QUINN and REAVIS and JOHNSON, JJ.

Brian Quinn, Justice

James Paul White challenges his conviction for aggravated sexual assault with a deadly weapon and sentence of 30 years imprisonment. The issues he asserts on appeal can be divided into two categories. The first entails the effectiveness of his counsel during both the guilt/innocence and punishment phases of the trial, while the second concerns the absence of an instruction defining reasonable doubt in the jury charge submitted during the punishment phase. We affirm.

Background

The evidence of record illustrates that appellant's victim was hitchhiking when he offered her a ride, which she accepted. Rather than take her to her destination, appellant drove to a secluded area, parked, placed a box cutter containing a razor blade against her throat, forced her to engage in oral sex, inserted his finger into her vagina, severely beat her, broke one of her fingers, and cut portions of her clothes off. After finding him guilty of aggravated sexual assault with a deadly weapon, the jurors heard evidence of other crimes he committed such as assaulting another female and driving while intoxicated. Subsequently, they assessed punishment at 30 years imprisonment, despite appellant's request for probation.

I. Ineffective Assistance of Counsel

Appellant contends that he was denied effective assistance of counsel in both the guilt/innocence and punishment phases of the trial. We disagree and reject the argument.

1. Standard of Review

We will consider each instance of purported ineffectiveness but address the applicable standard of review first. That standard no longer distinguishes between error arising during the guilt/innocence and punishment phases of the trial. With Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999), the Texas Court of Criminal Appeals held that the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to each phase. Pursuant to Strickland, we assess claims of ineffectiveness by first asking if counsel's performance was deficient in that he committed serious errors, and if so, whether the outcome of the trial would have differed but for counsel's deficiency. Id. at 466 U.S. at 687, 104 S. Ct. at 2068, 80 L. Ed. 2d at 693; Rodriguez v. State, 955 S.W.2d 171, 176-77 (Tex. App.--Amarillo 1997, no pet.).

The burden lies with the appellant to illustrate, via reference to evidence appearing of record, why both prongs of the test must be answered in the affirmative. Jackson v. State, 877 S.W.2d 768 771 (Tex. Crim. App. 1994); Rodriguez v. State, 955 S.W.2d at 176-77. So too must appellant refer us to evidence of record depicting the motives, if any, underlying the actions undertaken by counsel and questioned by appellant. Beck v. State, 976 S.W.2d 265, 266 (Tex. App.--Amarillo 1998, pet. ref'd); Rodriguez v. State, 955 S.W.2d at 176-77. This is so because we presume, until shown otherwise, that those actions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d at 771 (Tex. Crim. App.1994); Beck v. State, 976 S.W.2d at 266. Should such evidence be absent, then we lack adequate basis upon which to sustain appellant's complaint.

2. Application of Standard to Allegations

1. Failure to Question Venire

Initially, appellant asserts that counsel was ineffective due to his failure to ask members of the jury venire 1) whether they or any of their relatives had been victims of a sexual assault, 2) if so, whether they would be influenced by it, and 3) whether they could consider the full range of punishment, including probation. We disagree for several reasons.

First, the record is without evidence of counsel's motive, if any, regarding why he did not delve into those areas. Again, before we can disregard the presumption that counsel acted pursuant to reasonable trial strategy, evidence of his motive must appear of record. Jackson v. State, supra; Rodriguez v. State, supra. Because no such evidence appears here, the presumption is not rebutted.

Second, appellant cites us to no authority requiring counsel to delve into the areas in question to be effective. To now say that counsel was ineffective by failing to pose the questions suggested by appellant would be to make those questions a requirement in future trials. We lack the inclination and authority to do so and thereby micro-manage the performance of counsel. See Beck v. State, 976 S.W.2d at 267 (holding that attorneys are not required to ask potential jurors about their possible racial biases in order to be effective).

Third, the State addressed the venire about the full range of punishment, which included an explanation of probation and asking if the members of the panel could consider the full range of punishment, including probation. The topic having been broached and explored by others, defense counsel need not traverse those territories to be effective. See Beck v. State, 976 S.W.2d at 267 (counsel was not deficient for failing to voir dire on punishment when the court had already asked the venire if anyone could not consider the full range).

Finally, comments made during the voir dire illustrate that information about prior exposure to criminal activity was requested via the questionnaires completed by the potential jurors.¹ Furthermore, one prospective juror revealed that a relative had been a victim of crime. Given this, we again choose not to find counsel deficient simply because he did not investigate a matter already developed through other means. Nor do we care to do so when nothing of record indicates that any other potential jurors had been victims of criminal activity and would be influenced by that experience. In sum, we cannot divine prejudice from the failure to do something which may have been inconsequential given the state of the record.

2. Hagerman Crime Scene

Appellant characterizes his attorney as ineffective for failing to object to a statement by a witness involving an allusion to a place where a female, Amber Hagerman, had previously been abducted and subsequently killed by an unknown person. According to appellant, his counsel's silence allowed the jury to somehow attribute that crime to appellant, which in turn rendered counsel's performance deficient. We disagree for several reasons.

First, the record again lacks all evidence indicating the motive, if any, under which counsel acted. That proves fatal under Rodriguez and Beck.

Second, and more importantly, no evidence supports the allegation. Save for the commentary asserted in appellant's brief, nothing in this record establishes the existence of an Amber Hagerman incident or its purportedly scandalous significance. Alleged facts appearing for the first time in an appellate brief are not competent evidence which we can consider. Santacruz v. State, 963 S.W.2d 194, 197 (Tex. App.--Amarillo 1998, pet. ref'd). Thus, appellant's commentary in his brief cannot be used to support his contention, and we have no factual basis upon which to act.

3. Hearsay Evidence Regarding License Number

Appellant next alleges that trial counsel was ineffective because he did not object to hearsay regarding the "tracing of the assailant's license plate number to appellant." The supposed hearsay involved a detective testifying, without objection, "that he received information that the license plate was registered to a vehicle owned by appellant and was provided with appellant's address." Furthermore, the omission was harmful because it served to "link" appellant to the crime. We again disagree.

As before, nothing of record evinces the motives, if any, which counsel may have acted upon in remaining silent. Thus, we must presume that reasonable trial strategy induced his silence. And, even if no such motive existed, we would be unable to conclude that the omission had any effect upon the outcome of the trial. Appellant's victim twice identified him as the assailant, once in a photo array and once in court. This eyewitness testimony of a "link" between appellant and the assailant being of record precludes us from holding that but for counsel's silence the outcome would have differed.

4. Ateek's Testimony

Counsel was also supposedly ineffective because he did not object to the testimony of probation officer Stefan Ateek. The witness was initially called by trial counsel to speak about the programs available to a sex offender on probation. However, during cross-examination the prosecution asked the witness about the general propensities of sex offenders. Despite objection by counsel (which objection was overruled), appellant castigates his attorney for not uttering further objections based upon the witness's expertise or lack thereof, which failure supposedly deprived him of reasonable counsel. We again disagree.

Nothing appears of record evincing counsel's motives underlying his action. Indeed, it could well be that he believed further objections would have made him look unduly obstinate in the eyes of the jury, especially since the court had already overruled his initial objection. Nevertheless, the state of the record allows us to do nothing other than speculate about why he did what he did, which we cannot do. So, appellant failed to rebut the presumption that his counsel acted pursuant to reasonable trial strategy.

In addition, appellant's brief lacks illustration that the witness's testimony was legally objectionable. He merely posits that Ateek's comments "appeared to be grossly outside . . . [his] expertise . . . ." Yet, to be effective, trial counsel is not ...