Richard Nathaniel Cato v. State ( 2009 )

Opinion issued December 31, 2009                                                

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00613-CR

RICHARD NATHANIEL CATO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 07CR1193

  MEMORANDUM OPINION

          Appellant Richard Nathaniel Cato pleaded guilty to murder without an agreed recommendation on punishment.  See Tex. Penal Code Ann. § 19.02 (Vernon 2003).  The jury assessed punishment at 40 years’ imprisonment.  Cato brings a single issue, alleging ineffective assistance of counsel.  We affirm.

Background

          Texas City police officers were dispatched to Cato and his wife’s apartment in the early morning of April 17, 2007, in response to an EMS assist call. EMS came to the apartment in response to a 911 telephone call from Cato.  When the police officers arrived, EMS personnel were performing CPR on Cato’s wife, but she was unresponsive.  Cato’s wife was transported to the hospital where she was pronounced dead on arrival.    Beginning later that morning and continuing for a period of approximately twenty-four hours, Cato gave three written and five videotaped statements to the police.  In those interviews, Cato explained that he came to the police station because his wife’s brother threatened him with a knife and chased him in a car.  During the interviews, Cato eventually admitted to the police that he killed his wife by squeezing her throat with one of his hands and that he was using cocaine that evening.  Cato was formally arrested at 9:25 p.m. on April 17, 2007, and he gave his last statement the next morning at 10:00 a.m.

          Cato’s trial counsel filed a motion to prohibit the State from attempting to introduce the statements made to the police into evidence without prior approval of the trial court.  The State agreed to this motion in limine, and the trial court granted the motion. Notwithstanding this motion, the State introduced the statements during the trial on punishment without objection.

          Cato testified at the trial on punishment.  He explained that he had a fight with his wife, which became physical. Cato testified he “exploded in a fit of rage” and that he was not really sure what happened to him as a person. He admitted to strangling his wife. When he realized that she was unconscious, he tried to perform CPR.  After the first attempt to revive his wife was unsuccessful, Cato called his mother and said, “I think I may have killed my wife.”  He later called 911 and tried to perform CPR again until EMS personnel arrived.

          The trial court appointed Cato a new lawyer on appeal, who filed a timely motion for new trial.  The motion did not request an evidentiary hearing, but instead made a general contention that the verdict was contrary to the law and evidence.  No complaint of ineffective assistance of counsel was made in the motion for new trial.

Analysis

          Cato claims his trial counsel was ineffective at the punishment stage because trial counsel (1) did not file a pretrial motion to suppress the written and videotaped statements Cato made to the police and (2) did not object to the admission and use of these statements at trial.  To be entitled to a new trial based on ineffective assistance, a defendant must show that counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). The defendant bears the burden to prove ineffective assistance of counsel.  See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

          Allegations of ineffective assistance of counsel must be firmly founded in the record.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  The review of trial counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance.  See Thompson v. State, 9 S.W.3d 808, 812–13 (Tex. Crim. App. 1999) (citing McFarland, 928 S.W.2d at 843)).  When the record is silent on the motivations underlying trial counsel’s tactical decisions, the appellant usually cannot overcome the strong presumption that trial counsel’s conduct was reasonable.  See Thompson, 9 S.W.3d at 813.

          In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.  See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  Because the reasonableness of trial counsel’s choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his or her actions before a court reviews that record and concludes trial counsel was ineffective.  See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).  A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  Without proof from the defendant that there is no plausible professional reason for trial counsel’s act or omission, the reviewing court may not speculate on why counsel acted as he did.  See Bone, 77 S.W.3d at 835–36.

          On appeal, Cato argues that his trial counsel failed the first prong of Strickland—counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment—because his trial counsel did not file a pretrial motion to suppress Cato’s statements to the police and did not object to their admission during the trial on punishment.  In making this argument, Cato provides no authority in which the defendant pleaded guilty, but the defendant nonetheless claimed on appeal that his trial counsel was ineffective because counsel failed to suppress evidence of the defendant’s guilt at the trial on punishment.  Cato does rely upon authority from this Court that not filing a motion to suppress does not constitute per se ineffective assistance of counsel.  See Stafford v. State, 758 S.W.2d 663, 669 (Tex. App.—Houston [1st Dist.] 1988), rev’d on other grounds, 813 S.W.2d 503 (Tex. Crim. App. 1991).

          Cato’s argument under the first prong of Strickland does not acknowledge that he pleaded guilty.  Cato does not argue that he pleaded guilty because of his trial counsel’s deficient performance.  Nor does Cato argue that notwithstanding his guilty plea, his trial counsel was ineffective in allowing his statements to be admitted into evidence because that somehow adversely affected the jury’s assessment of his punishment.

          We need not speculate why Cato pleaded guilty.  On direct examination by his trial counsel during the punishment trial, Cato explained why he gave his written and video statements to the police:

Q.      And you voluntarily gave all of these statements?

A.      I did.

Q.      Without having a lawyer present, without being advised by a lawyer?

A.      Yes.

Q.      Why did you do that?

A.      I wanted them to know what I had done.  I wanted -- see, this happened and it’s something that I can’t ever fix, I can’t ever take back.  I look at all the lives I’ve destroyed and changed.  And taking responsibility for this and standing here before you and accepting my punishment is the closest thing I can offer anybody to some kind of closure, even for myself and the guilt that I feel and have to live with every day.  Every time I see a child on TV or every time I see somebody with a wedding ring on, every time I look and a woman’s walking by, you know, I think about the family that I had and what I’ve destroyed and I can never fix it.  The only thing I can do is offer myself and take responsibility for what I have done and pay for it the best that I can.  But it will never be enough.

Cato does not attempt to explain on appeal why this testimony was involuntary.

          It is Cato’s burden to prove that there was no plausible professional reason for his trial counsel to not file a motion to suppress and object to the admission of Cato’s statements to the police.  The State suggests that refraining from objecting to the admission of the statements was sound trial strategy because this allowed the jury to hear potentially mitigating evidence that Cato attempted to perform CPR on his wife. The State goes on to note that the jury only assessed a sentence of 40 years, out of a possible life sentence. Without speculating whether this was in fact trial counsel’s strategy, we hold that Cato has not met his burden under the first prong of Strickland to prove that his trial counsel was deficient. Because failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim, we do not reach Cato’s arguments on the second prong of Strickland.  See Thompson, 9 S.W.3d at 813.

          We overrule Cato’s sole issue.

Conclusion

          We affirm the trial court’s judgment.

                                                          Michael Massengale

                                                          Justice

 Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do not publish.  Tex. R. App. P. 47.2(b).