Wilson v. State

JESSE LUCAS WILSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-19-00076-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: August 29, 2019

August 30, 2019

On Appeal from the 173rd District Court Henderson County, Texas

Trial Court No. CR16-0937-173

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

Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

A Henderson County jury convicted Jesse Lucas Wilson of two counts of aggravated sexual assault of a child younger than fourteen.¹ See TEX. PENAL CODE ANN. § 21.02. Wilson was sentenced to thirty-three years' imprisonment and was ordered to pay $900.00 in attorney fees for his court-appointed counsel in two separate judgments, one for each count.

On appeal, Wilson argues that his counsel rendered ineffective assistance during guilt/innocence by refusing to allow him to testify and by failing to present allegedly exculpatory evidence. In his point of error, Wilson contends that the trial court abused its discretion by overruling his challenges to two veniremembers for cause. We find that the trial court did not abuse its discretion in overruling Wilson's motion for new trial based on ineffective assistance of counsel and that Wilson failed to preserve his last point of error. That said, because Wilson is indigent, we modify the trial court's judgments by deleting the assessment of court-appointed attorney fees. As modified, we affirm the trial court's judgments.

I. The Trial Court Did Not Abuse Its Discretion in Overruling Wilson's Motion for New Trial Based on Ineffective Assistance of Counsel

Wilson filed a motion for new trial arguing that his counsel rendered ineffective assistance during guilt/innocence by (1) refusing to allow him to testify in his defense and (2) by failing to present exculpatory witnesses. Wilson's motion for new trial was accompanied by his affidavit stating, "It was my wish to testify in my trial. I repeated my wish to testify over and over, but myattorney would not agree to call me to testify and ended up not putting on any defense at all." The affidavit did not detail the allegedly exculpatory evidence he wished to present, but merely characterized it as "evidence regarding the circumstance of the offense and living arrangements at the time of the alleged offense." The trial court denied Wilson's motion for new trial without a hearing.²

A. Standard of Review

When, as here, "the trial court denies a motion for a new trial alleging ineffective assistance of counsel, 'we view the 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.)). As a result, we use the standard set by Riley v. State:

An appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if the trial judge's opinion was clearly erroneous and arbitrary. A trial court abuses its discretion if no reasonable view of the record could support the trial court's ruling. This deferential review requires the appellate court to view the evidence in the light most favorable to the trial court's ruling. The appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012) (citations omitted), overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)); see Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim. App. 2017). We must decide whether the trial court erred in determining that Wilson failed to meet his burden to show counsel rendered ineffective assistance.

As many cases have noted, 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). 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 Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). 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).

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. As a result, the Texas Court of Criminal Appeals has said, "Trial counsel 'should ordinarily be afforded an opportunity to explain his actions before being'" found ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

When an appellate record is silent on why trial counsel failed to take certain actions, the appellant has "failed to rebut the presumption that trial counsel's decision was in some way—be it conceivable or not—reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This is because allegations of ineffectiveness "must 'be firmly founded in the record.'" Bone v. State, 77 S.W.3d 828, 833 n.13(Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). When a party raises an ineffective assistance of counsel claim for the first time on direct appeal, the defendant must show that "under prevailing professional norms," Strickland, 466 U.S. at 688, no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

B. Analysis

"A motion for new trial must be supported by an affidavit that specifically sets out the factual basis for the claim." Robinson v. State, 514 S.W.3d 816, 825 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (citing Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009)). When ineffective assistance of counsel is raised in a motion for new trial, "a defendant must allege sufficient facts from which a trial court could reasonably conclude both that counsel failed to act as a reasonably competent attorney and that, but for counsel's failure, there is a reasonable likelihood that the outcome of his trial would have been different." Smith v. State, 286 S.W.3d 333, 340-41 (Tex. Crim. App. 2009).

Wilson's motion for new trial and his accompanying affidavit did not set forth facts establishing either prong. Wilson's motion was supported only by his own affidavit, which merely said that counsel refused to allow him to testify and that, had he testified, his testimony would include "impeachment evidence, evidence regarding the circumstance of the offense and living arrangements at the time of the alleged offense."³ The statement in the motion for new trial thatcounsel "did not put on several defense witnesses who were available to testify as to exculpatory evidence including multiple instances of complainant's recanting, and living arrangements which would have made it impossible" to commit the offense were wholly unsupported by any affidavit. Critically, although Wilson complained of omissions by counsel, the motion and affidavit did not allege facts showing that counsel failed to act as a reasonably competent attorney in making the omissions.

As for counsel's failure to allow Wilson to testify, to establish ineffective assistance of counsel on this ground, it is necessary for appellant to show where in the trial record he asserted his right to testify and that his attorney failed to protect that right. Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); see Agosto v. State, 288 S.W.3d 113, 117 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The trial court could have found that the trial record did not support Wilson's claim.⁴ Alternatively, the court may have decided that there were many reasons why counsel could have been competent in preventing Wilson's testimony after the child victim testified in detail about many acts of sexual abuse. It could have determined that counsel reasonably believed that the evidence Wilson sought to present was not truly exculpatory, that Wilson may have made a poor witness, and that his cross-examination would reveal he hadengaged in other extraneous offenses and had been accused of sexual assault before by another victim. See Martinez v. State, No. 14-01-00674-CR, 2002 WL 1354238, at *3 (Tex. App.—Houston [14th Dist.] June 20, 2002, no pet.) (mem. op., not designated for publication) (concluding counsel did not render ineffective assistance in disallowing defendant's testimony).⁵ Thus, the trial court could have determined that Wilson failed to meet the first Strickland prong on this claim of ineffective assistance.

As for the second ground of ineffective assistance, Wilson asserted that his counsel should have called the family members and friends that testified at punishment during guilt/innocence.⁶ Wilson did not attach an affidavit showing defense counsel's effort, or lack of effort, in investigating their testimony.⁷ Robinson, 514 S.W.3d at 826. The record revealed that some of these witnesses were under subpoena and were available to testify during guilt/innocence.⁸ Thatsaid, "there may be many logical and reasonable explanations for not calling certain witnesses, such as a belief that these witnesses would not favorably impress the jury or that they were susceptible to impeachment and therefore presented...