Mustafa Yasir Awad v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Mustafa Yasir Awad

Appellant

Vs.                   No. 11-01-00042-CR B Appeal from Dallas County

State of Texas

Appellee

Appellant pleaded guilty to attempted aggravated sexual assault, and the jury assessed appellant=s punishment at confinement for 20 years.  Appellant appeals.  We affirm.

The record reveals that the complainant and her coworker, real estate agents, went to appellant=s home to give appellant information about listing his house for sale.  While the two women were discussing the listing agreement with him, appellant started to touch and kiss the victim.  Appellant threw the victim to the floor and started pulling her clothes off.  Both women were screaming and fighting appellant.  Appellant was biting the victim, and he was groaning and moaning as he attempted to rape the victim.  As the victim=s coworker was throwing things at appellant and yelling at him, appellant acted as if he did not even know the coworker was there.

In a single issue on appeal, appellant contends that he had ineffective assistance of counsel during the punishment phase in violation of the Sixth Amendment to the U.S. Constitution and Article I, section 10 of the Texas Constitution.  Appellant argues that his trial counsel failed to properly obtain a continuance; failed to properly request notice of extraneous offenses, prior misconduct, and bad acts; and failed to remove a juror who could not consider probation in the case.

The standard for evaluating the effectiveness of trial counsel at both the guilt-innocence phase and the punishment phase of a trial was stated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986), and Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Cr.App.1999).  Appellant must show by a preponderance of the evidence that his counsel=s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different.  See McFarland v. State, 845 S.W.2d 824, 842 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 936 (1993).  The review of trial counsel=s representation is highly deferential.  This court indulges a strong presumption that trial counsel=s conduct falls within a wide range of reasonable representation.  See Strickland v. Washington, supra at 689. The court in Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App.1999), stated:

Appellant Amust identify the acts or omissions of counsel that are alleged@ to constitute ineffective assistance and affirmatively prove that they fall below the professional norm for reasonableness.  See [Strickland v. Washington] at 690, 104 S. Ct. 2052.  After proving error, appellant must affirmatively prove prejudice.  See id. at 693, 104 S. Ct. 2052.  It is not enough for appellant to show that the errors of trial counsel had some conceivable effect on the outcome of the proceedings.  See id.  He must show there is a reasonable probability that, but for counsel=s errors, the fact-finder would have had a reasonable doubt respecting guilt and/or the sentence of death.  See id. at 695, 104 S. Ct. 2052.  Allegations of ineffectiveness must be founded in the record, and the record must demonstrate the alleged ineffectiveness. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.  See id. at 700, 104 S. Ct. 2052; McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997).

We agree with appellant that trial counsel=s oral and unsworn written motions for continuance preserved nothing for review.  See Dewberry v. State, supra at 755.  Appellant essentially urged in his written motion that he needed additional time to prepare a psychiatric defense.  The record reveals that the trial court denied the written motion for continuance because appellant=s trial counsel had been representing appellant for approximately six months. The court in Johnston v. State, 959 S.W.2d 230, 236 (Tex.App. - Dallas 1997, no pet=n), said:

An appellant may base an ineffective assistance claim on an attorney=s failure to present witnesses only if the appellant can show that the witnesses were available and their testimony would have benefitted the defendant.

In Curry v. State, 861 S.W.2d 479, 484 (Tex.App. - Fort Worth 1993, pet=n ref=d), the court held:

A defendant may base an ineffective assistance claim on an attorney=s failure to present witnesses only if he can show their testimony would have benefitted him.  See Ross v. State, 802 S.W.2d 308, 313 (Tex.App. - Dallas 1990, no pet.).  At the motion for new trial hearing, Curry demonstrated certain witnesses were available to testify, but he did not proffer the substance of their testimony or demonstrate it would have benefitted him.

The record in this case fails to show that an expert witness was available and that the testimony of the witness would have benefitted appellant.

Trial counsel urged in the oral motion for continuance that the State, on the day of trial, for the first time listed the extraneous offenses and bad acts that the State intended to present during the punishment phase.  Appellant argued that trial counsel needed more time to prepare a defense to these new offenses.  Counsel=s request for a continuance was denied by the trial court.

Appellant also contends that trial counsel was ineffective because counsel failed to properly file a request for notice under TEX. CODE CRIM. PRO. ANN. art. 37.07, ' (3)(g) (Vernon Supp. 2002).  Appellant maintains that, if trial counsel had properly filed his notice and had obtained rulings from the trial court, appellant could now urge on appeal that the trial court abused its discretion in overruling appellant=s objections to the extraneous matter. The State introduced evidence that appellant had previously fondled and molested other women.

The court in Rodriguez v. State, 981 S.W.2d 357, 359 (Tex.App. - San Antonio 1998, no pet=n), held that counsel=s failure to request that the State give notice under Article 37.07, section 3(g) was insufficient to render assistance ineffective.  The court stated:

Were we to so hold, failure to request notice would effectively block any attempt by the state to introduce evidence of this type, because in the case of an unfavorable result a defendant would be able to claim ineffective assistance as a matter of right.  Whatever the intent of the statute, it was not to give the defense attorney a veto over the prosecution=s use of extraneous offense testimony.  See Washington v. State, 943 S.W.2d 501, 506-507 (Tex.App. - Fort Worth 1997, pet. ref=d)(citing legislative history). Therefore, failure to request notice of intent to introduce punishment evidence under Art. 37.07, ' 3 is not one of those acts we will consider so egregious that it, by itself, will constitute ineffective assistance of counsel.

We note that appellant=s trial counsel argued from these extraneous offenses and bad acts that appellant was sick and, thus, should receive probation.  Appellant presented evidence from his wife and friends that appellant was sick, had psychiatric problems, and had been hospitalized.  There is nothing in the record showing that appellant did not commit the extraneous offenses.  The court in Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App.1999), citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997), recently stated that any allegation of ineffectiveness must be firmly founded in the record and that the record must affirmatively demonstrate the alleged ineffectiveness.  The court said:

A substantial risk of failure accompanies an appellant=s claim of ineffective assistance of counsel on direct appeal.  Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.  Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998).  (Footnote omitted)

The court added:

AIndeed in a case such as this, where the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.@  Jackson v. State, 973 S.W.2d at 957.

In Footnote No. 6 on Page 814, the court pointed out:

6.  This opinion should not be read as a declaration that no claim of ineffective assistance of counsel can be brought on direct appeal.  However, in the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland.

Appellant maintains that, during voir dire, Juror Schawlin stated that he could not consider probation.  Nevertheless, appellant argues that, without objection or challenge for cause, Juror Schawlin served on the jury.  The record fails to support appellant=s argument.  The record indicates that the prospective jurors who stated that they could not consider probation were Prospective Jurors Papa and Dempsey, not Juror Schawlin. 

Even if we assume, without deciding, that appellant=s trial counsel=s performance was deficient, the record fails to show that, but for counsel=s deficient performance, the result of the proceeding would have been different. Appellant=s sole issue is overruled. 

The judgment of the trial court is affirmed.

February 7, 2002                                                                     AUSTIN McCLOUD

Do not publish.  See TEX.R.APP.P. 47.3(b).                SENIOR JUSTICE

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.