Tajdar Mohammed v. State ( 2007 )


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  • Affirmed and Memorandum Opinion filed February 27, 2007

    Affirmed and Memorandum Opinion filed February 27, 2007.

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-06-00149-CR

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    TAJDAR MOHAMMED, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the County Criminal Court at Law No. 15

    Harris County, Texas

    Trial Court Cause No. 1326208

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellant, Tajdar Mohammed, was convicted by a jury for assault of a family member and sentenced by the trial court to 300 days= incarceration in the Harris County Jail.  In a single point of error, appellant claims he received ineffective assistance of counsel because his trial attorney failed to cross-examine one of the State=s witnesses.  We affirm. 


    On September 5, 2005, Officer Chris Wood received a call from dispatch for a disturbance at the Cedar Creek Apartments.  When Wood arrived at the apartment, he found it in disarray, i.e., Athere was furniture moved around or thrown over like a scuffle or something happened there . . .@  Wood observed that the complainant, Veronica Munoz, was terrified.  Because Munoz spoke Spanish and very little English, a neighbor, Deborah Knapp, translated what Munoz said into English for Wood. 

    Knapp observed that Munoz was upset and crying, had Achoke marks@ or Awelts@ on her neck, and had a two-year-old and an infant with her.  Munoz said her husband had caused the marks on her neck and she needed to leave the apartment because if appellant returned, Ahe was going to set her on fire.@  Knapp advised Wood she was going to drive Munoz to a shelter.  As Wood was escorting Munoz and Knapp to their car in the parking lot, appellant arrived.  Munoz identified appellant as her husband and assailant.  It appeared to Wood that Munoz and Knapp were scared when they saw appellant. 

    Appellant complains he received ineffective assistance of counsel because his trial counsel failed to cross examine Officer Wood.  Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977).  The right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686 (1984).  The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective.  Id.  Appellant must first demonstrate his counsel=s performance was deficient and not reasonably effective.  Id. at 688B92.  Thereafter, appellant must demonstrate the deficient performance prejudiced his defense.  Id. at 693.  Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different.  Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).


    Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy.  Id. Moreover, it is appellant=s burden to rebut this presumption, by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did.  Id.  Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).  Where the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 771.  An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record.  Jackson, 877 S.W.2d at 771. 

    If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions.  Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500.  Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment.  Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial.  See McFarland, 928 S.W.2d at 500.  If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails.  See id. 


    Here, the record does not demonstrate the reason appellant=s trial counsel chose not to cross-examine Wood.  We are not required to speculate on the reasons behind trial counsel=s actions when the record is silent.  Jackson, 877 S.W.2d at 771; see also Thompson, 9 S.W.3d at 814 (holding that when record provides no explanation as to motivation behind trial counsel=s actions, appellate court should be hesitant to declare ineffective assistance of counsel). Appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy.  See Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973) (stating the decision not to cross-examine a witness often is the result of wisdom acquired by experience in the combat of trial.); Valdes-Fuerte v. State, 892 S.W.2d 103, 111 (Tex. App.CSan Antonio 1994, no pet.) (stating the decision of whether to cross-examine witnesses is a matter of trial strategy.).

    Moreover, appellant does not explain on appeal what cross-examination of Officer Wood would have yielded or how the decision not to cross examine Officer Wood was harmful.  Therefore, appellant has failed to show any alleged deficiency in his trial attorney=s performance. Appellant has also failed to show how the absence of cross-examination prejudiced his defense.  Appellant=s sole point of error is overruled. 

    Accordingly, the judgment of the trial court is affirmed.

     

     

     

     

    /s/      J. Harvey Hudson

    Justice

     

     

     

     

    Judgment rendered and Memorandum Opinion filed February 27, 2007.

    Panel consists of Justices Yates, Anderson, and Hudson.

    Do Not Publish C Tex. R. App. P. 47.2(b).