Quentin Cardell Sturgis v. State ( 2008 )

Affirmed and Memorandum Opinion filed November 13, 2008

Affirmed and Memorandum Opinion filed November 13, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00669-CR

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QUENTIN CARDELL STURGIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1090987

M E M O R A N D U M   O P I N I O N

Appellant was charged with the second-degree felony offense of possession of cocaine.  He entered a plea of guilty to a third-degree possession offense and was sentenced to four years= deferred adjudication pursuant to a plea agreement.  Subsequently, the State filed a motion to adjudicate guilt based on subsequent offenses and violations of the terms and conditions of probation.  The trial court revoked appellant=s deferred adjudication probation, adjudicated his guilt, and sentenced him to ten years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  In a single issue, appellant claims he received ineffective assistance of counsel at the hearing on the motion to adjudicate.  We affirm.

I.  Factual and Procedural Background

On November 2, 2006, appellant entered a plea of guilty to the offense of possession of cocaine.  He was convicted and the trial court assessed punishment at four years= deferred adjudication probation.  The terms and conditions of probation required appellant to, among other things, (1) commit no offense against the laws of Texas or any other State or of the United States, (2) report monthly to a probation officer, (3) perform community service, (4) pay supervisory fees, a fine, court costs, and a laboratory fee, (5) obtain an offender identification card, (6) submit to drug and alcohol evaluation, and (7) provide proof of a high school diploma or its equivalent. 

On December 31, 2006, Officer Robert Muller of the Houston Police Department saw appellant riding a bicycle without a helmet.  Officer Muller stopped appellant, asked him to step off of the bicycle, and prepared to frisk him for weapons.  Prior to frisking appellant Officer Muller asked if he was carrying identification.  Appellant responded that his identification was in his pocket.  Officer Muller reached into appellant=s pocket and began removing the contents.  He found keys, some change, and two rocks of crack cocaine.  Officer Muller found appellant=s identification in his other pocket.  A field test of the rocks was positive for cocaine. Officer Muller arrested appellant for possession of a controlled substance, and the State subsequently filed a motion to adjudicate his guilt on the previous possession offense.  The State amended its motion to adjudicate to add the allegation that, on or about April 16, 2007, appellant committed murder.

The trial court held a hearing at which Officer Muller testified to the events surrounding appellant=s arrest.  The court liason officer from the 262nd District Court testified that appellant was placed on deferred adjudication probation subject to the above terms and conditions.  The court officer further testified that appellant failed to report to his probation officer, perform community service, pay the required fees, or obtain an identification card.  The trial court sustained appellant=s objection to her testimony about the subsequent offense alleged to have been committed by appellant.  After the close of evidence, appellant=s counsel informed the court that appellant had received an offender identification card.

The trial court found the allegations in the motion to adjudicate were true and adjudicated appellant guilty.  The court assessed punishment at ten years in prison. 

II.  Ineffective Assistance of Counsel

In a single issue, appellant claims he received ineffective assistance of counsel on the motion to adjudicate. 

A. Jurisdiction

Article 42.12, Section 5(b) of the Code of Criminal Procedure was amended during the 2007 Legislative session to allow appeals from the decision to adjudicate guilt.  Act of June 15, 2007, 80th Leg., R.S., ch. 1308, ' 5, 2007 Tex. Sess. Law Serv. ch. 1308.  The amended statute took effect on June 15, 2007, and the new provision applies only to a hearing conducted on or after that date. Because appellant=s hearing was held on July 11, 2007, we have jurisdiction over this appeal.

B. Standard of Review

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, ' 10.  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation was deficient in that it fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the deficiency prejudiced appellant in that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  Appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent.  Thompson, 9 S.W.3d at 813.  We presume that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy unless that presumption is rebutted.  See id. at 813B14; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  When reviewing a claim of ineffective assistance, we look to the totality of the representation and not to isolated instances of error or to only a portion of the trial record to determine that the accused was denied a fair trial.  Thompson, 9 S.W.3d at 813.

A claim for ineffective assistance of counsel must be firmly supported in the record. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  When, as in this case, there is no evidentiary record developed at a hearing on a motion for new trial, it is difficult to show that trial counsel=s performance was deficient.  See id.  Trial counsel may have had a specific strategy for his conduct, and a reviewing court may not speculate on trial counsel=s motives in the face of a silent record.  Thompson, 9 S.W.3d at 814.  On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

C. Analysis

Appellant contends that he received ineffective assistance of counsel at the hearing on the motion to adjudicate because counsel failed to cross-examine the State=s witnesses.  Two witnesses testified for the State: the court liason officer, and the arresting officer on the subsequent possession charge.  Appellant=s trial counsel objected to alleged hearsay and corrected the court officer=s testimony that appellant did not have an identification card, but did not cross-examine either witness.

Cross-examination is inherently risky, particularly in criminal cases where pretrial discovery is more limited than in civil cases.  Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).  The decision not to cross‑examine a witness is often the result of wisdom acquired by experience in the combat of trial.  Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973). There is a possibility that appellant=s trial counsel thought he might reveal his strategy in the pending possession and murder trials if he cross-examined the State=s witnesses.  A decision not to cross‑examine a witness may be based on reasonable trial strategy.  See Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  There is nothing in the record to show that trial counsel=s decision not to cross‑examine certain witnesses was anything other than trial strategy. Appellant has failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional.  Bone, 77 S.W.3d at 833. 

In viewing the totality of appellant=s representation at trial, we conclude that the assistance of counsel was within the wide range of reasonable professional assistance. Accordingly, we overrule appellant=s sole issue.

The judgment of the trial court is affirmed.

/s/      Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed November 13, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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