India Rice v. State ( 2009 )

Affirmed and Memorandum Opinion filed March 31, 2009

Affirmed and Memorandum Opinion filed March 31, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00575-CR

_______________

INDIA RICE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 50,703  

M E M O R A N D U M   O P I N I O N

A jury convicted appellant India Rice of knowingly possessing, with intent to pass, a forged writing.  The trial court assessed punishment at two years= confinement in state jail, suspended the sentence and placed appellant on probation for five years, and assessed a fine of $2,500.  Appellant challenges her conviction on the ground that she received ineffective assistance of counsel.  We affirm.

I.  Factual and Procedural Background

In July 2005, appellant purchased a large-screen television from an electronics store using a check drawn on the account of the complainant.  At appellant=s trial, the complainant testified that she did not know appellant and had not authorized the transaction.  The complainant also stated that her Aidentity had been stolen.@  In addition, a former store employee identified appellant as the person who completed and provided the check to pay for the television.  The store manager testified that appellant was the individual who gave him the necessary information to verify the check. Both of these witnesses also testified that another female was present with appellant when the television was purchased.  A video of a portion of the transaction was played for the jury, but it did not show appellant filling out or passing the check to the store employee.  A handwriting expert^[1] testified that he could not conclude whether appellant had written the check because the copy provided to him, which had been sent via facsimile to his office, was not clear enough for a proper analysis. 

After hearing the evidence, a jury found appellant guilty of knowingly possessing, with intent to pass, a forged writing.  Appellant elected to have the trial court assess punishment; her punishment hearing was delayed so that a pre-sentence investigation could be completed.  After the jury=s verdict was returned but before the sentencing hearing, the handwriting expert, at the order of the trial court and in the court=s chambers, completed a comparison of the handwriting on the original check used to pay for the television and a Ahandwriting exemplar@ form completed by appellant.  In his report, which is included in our record, the analyst stated he believed appellant had written the check because of Athe significant similar characteristics noted in the [s]tyle of the handwriting, as well as the significant characteristics found in the slant, spacing, and curvatures of the letters in the handwriting.@ 

A pre-sentence investigation report was prepared, in which the investigator recommended against placing appellant on community supervision because she refused to take responsibility for the offense.^[2]  The investigator testified regarding her recommendation, but also acknowledged that appellant could be successful at completing probation.  A friend of appellant=s testified that she believed appellant would be a good candidate for probation and would abide by the court=s rules.  Additionally, appellant testified that, although she disagreed with the jury=s verdict, she would do whatever was necessary to stay out of prison so she could remain at home with her 13-year-old son. 

The trial court sentenced appellant to two years= in state jail, but ordered the sentence suspended and placed appellant on probation for five years.  The trial court also assessed a fine of $2,500.  A motion for new trial was overruled by operation of law, and this appeal ensued.

II.  Issue Presented

In a single issue, appellant argues that she was denied her right to effective assistance of counsel because her trial counsel failed to investigate her case, interview witnesses, and locate the original check prior to trial.

III.  Analysis

A.        Standard of Review

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at  690B94.  An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).

Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that the attorney=s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When the record is silent as to trial counsel=s strategy, we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

B.        Application

Appellant asserts that her trial counsel was ineffective by Afailing to investigate, to interview witnesses, and to locate the original check prior to trial thereby depriving [her] of the opportunity to submit to a handwriting analysis.@  Appellant complains that her trial counsel=s failure to discover, obtain, and analyze the handwriting on the check used to pay for the television resulted in depriving her of her only viable defense.  She references several instances in the record where it is clear that her trial counsel was unaware that the original check still existed and could be obtained for a handwriting analysis. She further directs us to examples of her trial counsel=s purported failure to follow-through with a handwriting analysis after he discovered the original check was available.

Appellant acknowledges that the State did not have Ato prove who actually wrote or passed the forged check in a case of forgery by possession.@ Appellant argues that showing that appellant did not write the check would have negated Athe possession and passing of the check by [a]ppellant@ because Athe person who wrote the check was the same person who passed it to the clerk and was the only person who possessed the check with intent to defraud.@  Even if we assume that this argument has merit, however, the record reflects that the defense=s handwriting expert actually concluded that appellant wrote the check to the electronics store.  Thus, all of her claims suffer from the same failing: they are all premised on the erroneous assumption that the handwriting analysis would have shown that appellant did not write the check.

Under these circumstances, appellant cannot show a reasonable probability that, but for counsel=s alleged deficiency, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694; see also Garrett v. State, 998 S.W.2d 307, 314 (Tex. App.CTexarkana 1999, pet. ref=d) (A[A]n attorney=s failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only where it is affirmatively shown that the presentation of that evidence would have benefitted appellant.@).  After all, had the handwriting expert testified regarding his conclusion that appellant did write the check at issue, the jury would have had more incriminating evidence to consider before reaching its verdict.^[3]  Because appellant has not established the second Strickland prong, we need not consider whether her trial counsel=s performance was deficient.  Strickland, 466 U.S. at 697.  We therefore overrule appellant=s only issue. 

IV.  Conclusion

Having overruled appellant=s sole issue, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

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

---

^[1]  Although this expert was retained by the defense, the State stipulated on the record to his qualifications.

^[2]  At the conclusion of the sentencing hearing, the trial court adjourned until appellant completed an instanter drug test. 

^[3]  Further, we note that trial counsel=s representation may fall below an objective standard of reasonableness only if counsel does not conduct an adequate pretrial investigation.  Salinas v. State, 274 S.W.3d 256, 261 (Tex. App.CHouston [14th Dist.] 2008, pet. filed) (citing Wiggins v. Smith, 539 U.S. 510, 521B22, 533B34 (2003)).  Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  Id.  Generally, we defer to counsel=s judgments regarding decisions about the type of investigation necessary in a particular case.  See id.  Here, we have no record indicating what investigation counsel made.  In fact, appellant=s trial counsel may have performed a basic investigation that supported the State=s allegations, and reasonably have decided to go no further.  See id.