Williams, Bryant v. State ( 2000 )

NUMBER 13-98-068-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

BRYANT WILLIAMS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 24th District Court

of Jackson County, Texas.

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O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez

Opinion by Justice Rodriguez

A jury found appellant, Bryant Williams, guilty of possession with intent to deliver more than four grams but less than two hundred grams of cocaine. See Tex. Health & Safety Code Ann. 481.112(d) (Vernon Supp. 2000). The jury assessed punishment at forty years confinement and a fine of $5,000. By a single issue, appellant complains of ineffective assistance of counsel. We affirm.

A trooper for the Texas Department of Public Safety was working routine traffic in Jackson County when he observed a vehicle exceeding the legal speed limit. The trooper stopped the vehicle and saw Jamal Young sitting in the driver seat and appellant sitting in the passenger seat. The trooper asked the men where they were heading, and they responded with conflicting answers. Both men appeared nervous. The trooper ran a check for warrants on the two individuals, and learned of an outstanding warrant for appellant's arrest in Illinois. The trooper arrested appellant, and during an incidental search, discovered 24.21 grams of cocaine taped to appellant's groin area.

In his sole point of error, appellant complains he was denied effective assistance of counsel. Specifically, appellant complains that he received ineffective assistance of counsel because trial counsel apparently advised him to testify, and, according to appellant, failed to advise him as to all the consequences of testifying. He also contends trial counsel performed deficiently during direct examination of appellant.

We apply the two-pronged Strickland⁽¹⁾ test to determine whether representation was so inadequate as to violate appellant's Sixth Amendment right to counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To prevail on a claim of ineffective assistance of counsel, an appellant must show: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson, 9 S.W.3d at 812. The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

The showing of deficiency, which must affirmatively appear in the record, requires that counsel's performance fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812-13. We indulge a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. See id; Tijerina v. State, 921 S.W.2d 287, 289 (Tex. App.--Corpus Christi 1996, no pet.).

An appellant must affirmatively prove prejudice with a showing that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. We conduct the aforementioned review by looking to the totality of the representation and the particular circumstances of each case. See id. at 813.

In this case, trial counsel called appellant as his first witness. Prior to appellant taking the stand, trial counsel admonished him, before the court and opposing counsel, but outside the presence of the jury, as follows:

Mr. Cedillo: Have you - have we discussed the possibility of you testifying or not testifying in open court?

The Defendant: Yes, sir.

Mr. Cedillo: Okay. And has your attorney, that is myself, admonished or given you first of all the understanding that you do not have to testify?

The Defendant: Yes.

Mr. Cedillo: By law nobody can make you testify.

The Defendant: Yes, sir. Yes, sir.

Mr. Cedillo: And if you do decide to testify that's a decision made solely by you?

The Defendant: Yes, sir.

Mr. Cedillo: Based on my advice?

The Defendant: Yes, sir.

Mr. Cedillo: And nobody, let me ask you another question on that respect.

You know that if you do take the stand-

The Defendant: Yes, sir.

Mr. Cedillo: -that you will be subject to a vigorous cross-examination by the prosecutor even to the point where items that have been brought before this Court may be questioned, may be asked of you?

The Defendant: Yes, sir.

Mr. Cedillo: Okay. Knowing that do you want to testify or -

The Defendant: Yes, I do.

The trial judge further admonished appellant that he did not have to testify. On appeal, appellant complains trial counsel did not indicate that it would not be in his best interest to take the stand.

The record indicates that although appellant may have elected to testify based on the advice of counsel, he was clearly informed that he was not obligated to do so. Moreover, trial counsel warned appellant that by electing to testify, he would be subject to rigorous cross-examination. Therefore, trial counsel did not act deficiently in admonishing appellant of the dangers associated with testifying.

Appellant further complains of trial counsel's decision to have him testify and of counsel's questioning during direct examination. Appellant notes trial counsel had appellant admit he was in possession of cocaine and that he was knowledgeable of the drug scene in Harris County. Counsel also asked appellant about his outstanding warrant in Illinois, which was for possession of cocaine.

Appellant has failed to create a record regarding counsel's trial strategies. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993) (defendant may raise ineffective assistance of counsel claim and develop record in proceeding on motion for new trial). Absent such a record, we must indulge the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A full inquiry into the strategy or tactics of counsel should be made only if from all appearances after trial, there is no plausible basis in strategy or tactics for his actions. See Ex Parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978); Newsome v. State, 703 S.W.2d 750, 755 (Tex. App.--Houston [14th Dist.] 1985, no pet.).

Appellant's trial counsel may have believed that having appellant admit to possessing the cocaine and having knowledge of the drug community would increase his credibility before the jury. Consequently, the jury may have been more likely to believe his testimony that he did not deliver the cocaine, which was an essential element of the offense for which he was convicted. The jury may have also been more likely to believe his testimony that the cocaine introduced into evidence by the State was not the same cocaine he had in his possession on the date of the offense. Thus, there was a plausible basis for trial counsel to call appellant to the stand and question him as he did. See Burns, 601 S.W.2d at 372 (error in trial strategy will be considered inadequate representation only if counsel's actions are without any plausible basis). Appellant could have rebutted the "effectiveness presumption" with a record containing competent evidence of trial counsel's reasoning or lack thereof, yet failed to do so. See Lozada-Mendoza v. State, 951 S.W.2d 39, 44 (Tex. App.--Corpus Christi 1997, no pet.). Accordingly, appellant has failed to satisfy the deficient performance requirement of the Strickland test. Having found trial counsel was not ineffective, we overrule appellant's point of error.

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the 28th day of April, 2000.

1. Strickland v. Washington, 466 U.S. 668, 687 (1984).