Aubin v. State

MATTHEW JAMES AUBIN, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-18-00092-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: February 20, 2019

March 15, 2019

On Appeal from the 123rd District Court Panola County, Texas

Trial Court No. 2016-C-0109

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

A Panola County jury convicted Matthew James Aubin of sexual assault of a child, Alice.¹ Following a bench trial on punishment, Aubin was sentenced to twenty years' imprisonment. On appeal, Aubin argues that the trial court erred in overruling his motion for new trial based on counsel's alleged failure to adequately investigate the facts of the case or to present mitigating evidence. Aubin also raises new grounds on appeal related to trial counsel's alleged ineffectiveness that were not considered by the trial court. He argues that counsel rendered ineffective assistance by introducing unfavorable extraneous-offense evidence, alluding to Aubin's Fifth Amendment right to remain silent, and permitting improper victim-allocution evidence at punishment.

We conclude that the trial court did not abuse its discretion in overruling Aubin's motion for new trial. We also conclude that the silent record does not support Aubin's new claims of ineffective assistance of counsel and that Aubin cannot show prejudice resulting from any alleged ineffectiveness. We, therefore, affirm the trial court's judgment.

I. General Standards for Ineffective Assistance of Counsel

All of Aubin's complaints on appeal are rooted in claims of ineffective assistance of counsel. "The applicant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence." Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim.App. 2006). Thus, to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "If this Court 'can conceive potential reasonable trial strategies that counsel could have been pursuing,' then we cannot conclude that counsel's performance was deficient." Turner v. State, 528 S.W.3d 569, 577 (Tex. App.—Texarkana 2016, no pet.) (quoting Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005)).

The second Strickland prong, sometimes called "the prejudice prong," requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "A reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. Thus, to establish prejudice,

an applicant must show "that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable." [Strickland, 466 U.S.] at 687 . . . . It is not sufficient for Applicant to show "that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693 . . . . Rather, [he] must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695 . . . .

Martinez, 330 S.W.3d at 901.

A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). "Thus, we need not examineboth Strickland prongs if one cannot be met." Turner, 528 S.W.3d at 577 (citing Strickland, 466 U.S. at 697).

The Strickland test "of necessity requires a case-by-case examination of the evidence." Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)). We "must look to the totality of the representation, and its decision must be based on the facts of the particular case, viewed at the time of counsel's conduct so as to eliminate hindsight bias." Martinez, 330 S.W.3d at 901 (citing Strickland, 466 U.S. at 690). In all cases, the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding." Id. (quoting Strickland, 466 U.S. at 696).

II. Overruling Aubin's Motion for New Trial Was Not an Abuse of Discretion

Aubin argues that trial counsel failed to (1) conduct an adequate investigation of the case in preparation for trial and (2) present mitigating evidence during punishment. Both grounds for ineffective assistance were urged in his motion for new trial below.

A. Standard of Review on Aubin's Motion for New Trial

Our standard of review is slightly altered on these claims because a reviewing court measures a trial court's ruling on a motion for new trial under an abuse of discretion standard. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). A trial court abuses its discretion in this context only when no reasonable view of the record could support its ruling, which will be upheld on appeal so long as it falls within the zone of reasonable disagreement. Id. For that reason, "[w]hen the trial court denies a motion for a new trial alleging ineffective assistance of counsel, 'we viewthe relevant legal standards through the prism of abuse of discretion.'" Lampkin v. State, 470 S.W.3d 876, 903 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Ramirez v. State, 301 S.W.3d 410, 415 (Tex. App.—Austin 2009, no pet.)). We must therefore decide whether the trial court erred in determining that Aubin failed to meet the two-prong Strickland test.

B. Evidence Taken at the Motion for New Trial Hearing

At the hearing on Aubin's motion for new trial, counsel testified that he reviewed every piece of discovery with Aubin during numerous telephone calls and four face-to-face meetings, including the last meeting that occurred one week before trial. On Aubin's recommendation, counsel identified Aubin's girlfriend, Desiree Nitzschke, as a potential witness and spoke with her twice before trial. According to counsel, Nitzschke relayed the favorable version of events, but flipped course at trial. Counsel admitted that he was surprised by Nitzschke's testimony, which was even different from her recorded police interview.

As for other witnesses, counsel claimed that Aubin pointed him to Cory Mims, a local police officer who "never had . . . any correct knowledge of this particular crime," and several "drug addicts and prostitutes that could vouch for his character." Counsel testified that he could not locate Alice's mother, who was also a known drug addict, and could not recall from his memory whether he had spoken with the child's grandmother. Ultimately, counsel explained that the State had already subpoenaed the witnesses he believed would be required at trial. Counsel admitted that he did not seek Alice's school records and knew nothing about an open Child Protective Services case involving Alice in Texas.

The trial court scheduled the sentencing hearing two months after the jury rendered its verdict of guilt to allow for the return of a presentence investigation report (PSI).² In the interim, Aubin filed a letter with the trial court thanking it for the new lawyer appointed to his case, who had already met with him. Because of that letter, counsel stated he was under the mistaken assumption that he was no longer Aubin's counsel on punishment and failed to communicate with him prior to the sentencing hearing. That said, although he had stopped working on the case, counsel clarified that he had prepared for the sentencing hearing.

During his investigation into possible mitigating evidence on punishment, counsel testified that, although Aubin was competent to stand trial, he had a history of mental-health treatment and "explosive disorder." Although he did not obtain all of Aubin's mental health records, a 2014 psychiatric evaluation conducted by Community Healthcore was entered into evidence during punishment. After describing Aubin's mental health history, the report relayed that Aubin suffered from post-traumatic stress and mood disorders, had contemplated suicide, and sought assistance for chronic anger, anxiety, and mood problems.³ The report also detailed Aubin's tumultuous childhood resulting from detailed accounts of abuse suffered by Aubin at the hands of his foster parents. According to the report, Aubin's foster parents had him "placed in institutions" beginning at age thirteen, where he was also abused, and eventually relinquished him "to the state" until he was "released to the streets" at adulthood. Aubin began experimenting with drugs and was arrested and incarcerated on several drug-related charges. Counsel also admitted a 2013 psychologicalevaluation containing much of the information in the 2014 report and had Aubin testify at length about those mitigating factors. Although counsel admitted that he did not seek help from an expert or investigator, he testified that he could not fathom what mitigating evidence was omitted during punishment.

C. The Trial Court's Strickland Findings Were Not an Abuse of Discretion

After reviewing the transcript of the motion for new trial hearing, we can find no abuse of discretion in the trial court's conclusion that the record failed to show that trial counsel put forth an insufficient investigative effort or that he lacked a thorough understanding of...