Wright v. State

KHADIJAH WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-19-00157-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: July 1, 2020

July 2, 2020

On Appeal from the 5th District Court Bowie County, Texas

Trial Court No. 18F0377-005

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

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

A Bowie County jury found Khadijah Wright guilty of injury to a child causing death by omission and assessed a sentence of ninety-nine years' imprisonment. See TEX. PENAL CODE ANN. § 22.04. On appeal, Wright argues that her trial counsel rendered ineffective assistance. We conclude that Wright has inadequately briefed two of the four grounds of alleged ineffective assistance and that the silent record does not meet Wright's burden to prove the remaining two grounds of ineffective assistance of counsel. As a result, we affirm the trial court's judgment.

"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. 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). "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."' Clark v. State, 592 S.W.3d919, 930 (Tex. App.—Texarkana 2019, pet. ref'd) (quoting Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007)). The reason is that complaints that an attorney was ineffective cannot succeed unless they are "firmly founded in the record." Id. (quoting Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002)); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). "We will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness." Blackmon v. State, 80 S.W.3d 103, 108 (Tex. App.—Texarkana 2002, pet. ref'd). "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 examine both Strickland prongs if one cannot be met." Turner, 528 S.W.3d at 577 (citing Strickland, 466 U.S. at 697).

Here, Wright raises several grounds of ineffective assistance, including that counsel failed to object to the admission of Wright's voluntary confession, to attend certain pretrial hearings, to make an opening statement or present witnesses during guilt/innocence, and to call mitigation witnesses, other than an expert witness at punishment. We find that (1) Wright has forfeited her first two grounds of ineffective assistance and (2) the record does not support the remaining grounds arguing ineffective assistance.

(1) Wright Has Forfeited Her First Two Grounds of Ineffective Assistance

"To avoid forfeiting a legal argument for inadequate briefing, an appellant's brief must contain 'a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."' Taylor v. State, 558 S.W.3d 215, 218 (Tex. App.—Texarkana 2018, no pet.) (quoting TEX. R. APP. P. 38.1(i)) (citing Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000)). "Because the Texas Court of Criminal Appeals has emphasized that an appellate court has no obligation to construct and compose issues, facts, and arguments for an appellant, encompassed within Rule 38.1 is the party's task of explaining or discussing why an argument has substance." Id. (citing Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Lucio, 351 S.W.3d at 896-97; Busby, 253 S.W.3d at 673).

"To avoid forfeiture, a party must provide substantive analysis by applying the law to the facts." Id. (citing Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in refusal to grant petition for discretionary review)). "A brief that fails to apply the law to the facts does not comply with Rule 38.1 and presents nothing for review." Id. (citing Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003)).

In her first ground, Wright argues that counsel was ineffective because she failed to suppress or object to the admission of her voluntary confession. To meet her burden under Strickland, Wright must show that a challenge to the admission of her voluntary confession was warranted. Yet, Wright does not explain whether any basis for such a challenge existed. As a result, she has failed to make a clear and concise argument that counsel had reason to challenge the admission of her voluntary confession.

Also, "[a] trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel." Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). "Counsel is not required to engage in the filing of futile motions." Id. (citing Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)). To "prevail on an ineffective assistance claim premised on counsel's failure to file a motion to suppress, an appellant must show by a preponderance of the evidence that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction." Id. (citing Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998)). Wright fails to present any analysis of this issue.

Because conclusory statements do not lay the predicate for an ineffective-assistance claim, Wright has forfeited this ground of ineffective assistance. See Lucio, 351 S.W.3d at 896; Ruiz v.State, 293 S.W.3d 685, 693 (Tex. App.—San Antonio 2009, pet. ref'd) (complaint waived where defendant's brief "contain[ed] no argument or authorities" to support contention that his counsel was ineffective); Tufele v. State, 130 S.W.3d 267, 270-71 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (ineffective-assistance-of-counsel complaint waived for inadequate briefing).

Wright also complains of her counsel's failure to appear at several pretrial hearings because "[a]bsence from such hearings deny the defendant vital assistance in their process through the criminal justice system." The argument is unsupported by citation to authority or any explanation of how failure to appear at pretrial hearings—a fact of which the jury was unaware—led to a different result in this jury trial during which counsel was present. As a result, by failing to brief the second prong of Strickland with respect to this ground of ineffective assistance, Wright has forfeited it. See Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.—Texarkana 2006), aff'd, 239 S.W.3d 809 (Tex. Crim. App. 2007) (finding inadequate briefing where appellant made no effort to show how record demonstrated prejudice under Strickland's second prong); Peake v. State, 133 S.W.3d 332, 334 (Tex. App.—Amarillo 2004, pet. ref'd) (overruling appellant's claim of ineffective assistance of counsel due to inadequate briefing while noting that the appellate court has "no duty to unilaterally fill the void appellant left" by his briefing).

The first two issues on appeal are overruled.

(2) The Record Does Not Support the Remaining Grounds Arguing Ineffective Assistance

The remaining issues are not supported by the record.

Wright complains that counsel reserved opening statement, did not present a single witness during the guilt/innocence phase of trial, and did not address the jury until closing argument.Wright essentially argues that, by these omissions, counsel failed to present a defense. We find that this silent record does not support Wright's...