David Eric Beard v. State ( 2020 )

Affirmed as Modified and Memorandum Opinion filed October 6, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00165-CR
DAVID ERIC BEARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1397603
MEMORANDUM OPINION
Appellant pleaded guilty to aggravated robbery, and the trial court placed
him on deferred adjudication community supervision. The trial court revoked
appellant’s community supervision, adjudicated his guilt, and sentenced him to
forty-five years’ imprisonment. In eight issues, appellant contends that his trial
counsel rendered ineffective assistance, that his sentence is excessive under the
Eighth Amendment, and that his Sixth Amendment right to confront witnesses was
violated by the admission of hearsay testimony. We affirm.
I. PROCEDURAL BACKGROUND
The State alleged in its second amended motion to adjudicate appellant’s
guilt that appellant committed fourteen violations of the terms of his community
supervision. Appellant pleaded not true to the allegations.
After a hearing, the trial court found nine of the allegations true, including
four new-offense violations (two aggravated sexual assaults, theft, and operating a
motor vehicle with a suspended license and without insurance), failure to pay
various fees and costs, failure to verify employment, and failure to participate in
community service at the minimum number of hours per month.
The court assessed punishment at forty-five years’ imprisonment. Appellant
did not file a motion for new trial.
II. INEFFECTIVE ASSISTANCE
In his first six issues, appellant contends that his trial counsel rendered
ineffective assistance by failing to (1) investigate and present mitigation evidence;
(2) request any recourse for alleged discovery and disclosure violations; (3) object
to hearsay; (4) move for a mistrial; (5) request funding for a sexual assault nurse
examiner (SANE) expert; and (6) investigate the allegations in the State’s motion
to adjudicate.
A. Legal Principles
To prevail on a claim of ineffective assistance, an appellant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness and (2) counsel’s deficiency caused the appellant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310 S.W.3d 890,
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892–93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a
preponderance of the evidence. Perez, 310 S.W.3d at 893.
Generally, a claim of ineffective assistance may not be addressed on direct
appeal because the record usually is not sufficient to conclude that counsel’s
performance was deficient under the first Strickland prong. See Andrews v. State,
159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005). Ordinarily, trial counsel should be afforded an
opportunity to explain counsel’s actions before being denounced as ineffective.
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
“Review of counsel’s representation is highly deferential, and the reviewing
court indulges a strong presumption that counsel’s conduct fell within a wide range
of reasonable representation.” Salinas, 163 S.W.3d at 740. “To overcome the
presumption of reasonable professional assistance, any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Id. (quotation omitted).
It is the “rare case” when an appellant raises a claim of ineffective assistance
on direct appeal and the record is sufficient to make a decision on the merits.
Andrews, 159 S.W.3d at 103. We must presume that trial counsel’s performance
was adequate unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 696–97
(Tex. Crim. App. 2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)). To clear the hurdle of establishing deficient performance on
direct appeal, “the record must demonstrate that counsel’s performance fell below
an objective standard of reasonableness as a matter of law, and that no reasonable
trial strategy could justify trial counsel’s acts or omissions, regardless of
[counsel’s] subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
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Crim. App. 2011). If there is a potential reasonable trial strategy that counsel
could have been pursuing, we cannot conclude that counsel performed deficiently.
See Andrews, 159 S.W.3d at 103.
B. Issues 1, 5, and 6: Investigation and Presentation of Evidence and
Funding for Expert Witness
Appellant contends that counsel was ineffective for failing to investigate and
present mitigating evidence, to investigate the State’s allegations for revocation of
community supervision, and to request funding for a SANE expert.
An appellant cannot show ineffective assistance based on failure to
investigate and adduce evidence without showing what the investigation would
have revealed that reasonably could have changed the result of the case. See
Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref'd); see also Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986). To
determine whether an appellant was prejudiced from a failure to investigate and
present evidence, this court must “compare the evidence presented by the State
with the ‘evidence the jury did not hear due to trial counsel’s failure to
investigate.’” Perez, 310 S.W.3d at 896 (quoting Butler, 716 S.W.2d at 56). We
are unable to do so because appellant has not identified what evidence a proper
investigation would have revealed, nor what benefit could have been obtained from
an expert. See Ex parte McFarland, 163 S.W.3d 743, 755 (Tex. Crim. App. 2005);
see also King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (“Counsel’s
failure to call witnesses at the guilt-innocence and punishment stages is irrelevant
absent a showing that such witnesses were available and appellant would benefit
from their testimony.”); Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) (“[T]he failure to request the appointment of
an expert witness is not ineffective assistance in the absence of a showing that the
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expert would have testified in a manner that benefitted the defendant.” (alteration
in original, quotation omitted)).
Appellant has not shown what mitigation evidence was available, what
counsel’s investigation regarding the State’s allegations would have revealed, nor
how a SANE expert would have aided appellant’s defense. Appellant suggests that
his wife “could have been contacted and testified,” but nothing in the record shows
that trial counsel failed to contact appellant’s wife or that her testimony would
have benefited appellant.
Appellant’s first, fifth, and sixth issues are overruled.
C. Issue 2: Discovery and Disclosure Violations
Appellant contends that counsel was ineffective for not requesting any
recourse for the State’s late disclosure of evidence “other than to admit the late
disclosures into evidence.” Appellant contends that counsel should have “asked
for a continuance to be able to explore and utilize this late disclosure” or should
have called several police officers as witnesses to contradict another witness’s
testimony.
The complainant for one of the State’s allegations concerning appellant’s
commission of a new offense of aggravated sexual assault testified in a manner
inconsistent with her statements contained in several police reports. At the
hearing, counsel complained that appellant was not “given a specific Brady notice”
that C.H. was going to change her story. Counsel noted that she had subpoenaed
the police officers but did not “have those folks sitting in the hallway” to testify
because the State did not disclose that C.H.’s story would change. Counsel
recognized that “the appropriate way to impeach that would be to have those
witnesses here.” The trial court explained that it had “no idea whether or not the
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State knew” C.H. would change her story. Counsel asked for the police reports to
be admitted as exhibits, and the court admitted them over the State’s objection.
The court explained it would consider the reports because they were relevant in
assessing C.H.’s credibility.
Appellant has not overcome the presumption that counsel’s conduct fell
within the wide range of reasonable representation. Nor has appellant
demonstrated any prejudice. Rather than request a continuance or call police
officers to testify for purposes of impeachment, counsel successfully sought the
admission of the officers’ reports to undermine C.H.’s credibility. The record does
not affirmatively demonstrate a lack of strategy in counsel’s successful offer of the
reports, rather than delaying the proceeding for live testimony from the officers.
The decision not to request a continuance can be strategic. See Alcantar v. State,
No. 11-02-00096-CR, 2003 WL 1392600, at *2–3 (Tex. App.—Eastland Mar. 20,
2003, pet. ref’d) (not designated for publication). Moreover, the record does not
show that the officers’ testimony would have impeached C.H.’s credibility to any
degree greater than the written reports, which the trial court said it would consider
in assessing C.H.’s credibility. See, e.g., Perez, 310 S.W.3d at 894 (failure to call
witnesses is irrelevant absent showing that the defendant would benefit from
testimony); King, 649 S.W.2d at 44 (same).
Appellant’s second issue is overruled.
D. Issue 3: Objection to Hearsay
Appellant contends that the trial court sustained counsel’s numerous hearsay
objections but that counsel failed to object to one instance of hearsay from a police
officer when the State predicated its question with the phrase “based on your
investigation.” The State contends that, in context, counsel may have reasonably
believed that the complained-of testimony was not hearsay because the question
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was about what kind of car appellant drove, not what kind of car the witnesses had
described. The officer testified:
Q. Okay. So, how, I guess -- I want to talk about how Mr.
Beard was developed as a suspect in the case.
A. So, my partner and I reviewed all six cases with our crime
analyst who was able to -- we were able to look at certain traits,
characteristics, vehicle description, the modus operandi in this
particular incident, the defendant’s physical appearance description,
namely a tattoo on his arm written in cursive named Dylan. Again,
like I said, vehicle description, the red -- everyone saying a red
maroon car. When I say everyone, I mean [M.W.] and the other
complainant --
[COUNSEL]: Judge, again, I’d object to hearsay.
THE COURT: That’s sustained.
Q. So, based on your investigation, were you -- you said that
the car was similar. What kind of car was that?
A. It was a Lexus.
Q. What kind of car description were you -- did you learn?
[COUNSEL]: Judge, objection, again, to the hearsay.
THE COURT: That’s sustained.
Q. Was the car the same in each of the cases that you were
investigating?
[COUNSEL]: Judge, object, again. That’s still hearsay.
THE COURT: That’s sustained.
Q. Did you learn of similar trends with each of the cases?
A. Yes.
Q. And what similar trends were those?
[COUNSEL]: Judge, again, calls for hearsay.
THE COURT: Sustained.
Q. Were the cars in each of the cases similar to make or model
in the car?
[COUNSEL]: Judge, again, I would object to the hearsay.
THE COURT: That’s sustained. You probably need somebody that
has some personal information.1
1
Emphasis is added.
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Generally, there is no strategic value “to pass over the admission of
prejudicial and clearly inadmissible evidence.” Ex parte Menchaca, 854 S.W.2d
128, 132 (Tex. Crim. App. 1993) (quoting Lyons v. McCotter, 770 F.2d 529, 534
(5th Cir. 1985)). But, to “pass over the admission of prejudicial and arguably
inadmissible evidence may be strategic.” Id. (quoting Lyons, 770 F.2d at 534). It
may be strategic to not object to inadmissible hearsay, for example, if trial counsel
“at that moment may have reasonably decided that the testimony was not
inadmissible.” Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see
also Lopez v. State, 343 S.W.3d 137, 141, 143–44 (Tex. Crim. App. 2011) (no
deficient performance on a silent record as to why counsel failed to object to
inadmissible hearsay; possible strategy of exposing inconsistencies in statements).
We agree with the State that, in context, counsel may have reasonably
understood the State’s question and the officer’s answer to be a reference to
appellant’s car, rather than inadmissible hearsay about what kind of car the
complainants had described. On a silent record, we cannot conclude that trial
counsel was deficient because counsel may have reasonably decided that the
testimony was admissible. See Thompson, 9 S.W.3d at 814 (no deficient
performance on a silent record as to why trial counsel failed to object to the State’s
“artful questions” as the State “doggedly pursued the introduction of inadmissible
hearsay”).
Appellant’s third issue is overruled.
E. Issue 4: Moving for a Mistrial
Appellant contends that counsel should have requested a mistrial based on
the “volume of sustained objections,” i.e., fifty-five. Appellant reasons that
because the judge was also the trier of fact, there was a “high likelihood those
questions influenced her decisions and ultimate finding of guilt and punishment”
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and there is “no doubt that those objectionable questions and testimony could have
influenced the judge in making factual or even legal conclusions.”
Generally, however, a contrary presumption is indulged in a bench trial. The
trial court is “presumed to be able to disregard those matters he deems, in his
capacity as legal arbiter, to be inappropriate for consideration in his role as fact-
finder.” Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012). The Court
of Criminal Appeals has explained:
In a bench trial, the judge often will learn the substance of the
evidence before he can rule on the motion to suppress. The judge is
presumed to disregard the inadmissible evidence if the court is called
on to decide the merits of the case. In essence, the judge assumes dual
roles: He acts as a judge in ruling on the admissibility of the evidence,
and he acts as a juror in weighing the credibility of the evidence.
Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004).
Accordingly, counsel may have determined that a request for a mistrial
would have been futile. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim.
App. 1991) (“Counsel is not required to engage in the filing of futile motions.”);
see also Garcia v. State, 112 S.W.3d 839, 847 (Tex. App.—Houston [14th Dist.]
2003, no pet.). Moreover, counsel’s failure to request a mistrial—when the trial
court repeatedly sustained counsel’s objections—could have been a conscious
decision to capitalize on the trial court’s possible frustration with the State; counsel
could have made a strategic decision to continue the proceeding with the existing
record and fact finder. See Calderon v. State, 950 S.W.2d 121, 140 (Tex. App.—
El Paso 1997, no pet.) (on a silent record, counsel’s decision to not request a
mistrial could have been strategic “to capitalize on possible jury frustration with
the State”).
Appellant’s fourth issue is overruled.
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III. EXCESSIVE PUNISHMENT
In his seventh issue, appellant contends that his forty-five-year sentence
violates his Eighth Amendment right against an excessive punishment. Generally,
a person must preserve error in the trial court for a complaint that a sentence is
unconstitutionally excessive. See Davis v. State, 586 S.W.3d 586, 591 (Tex.
App.—Houston [14th Dist.] 2019, pet. ref’d); see also Tex. R. App. P. 33.1. The
record does not show that appellant preserved this complaint in the trial court or
that any exception applies to the preservation requirement.
Appellant’s seventh issue is overruled.
IV. CONFRONTATION CLAUSE
In his eighth issue, appellant contends that the trial court erred by admitting
testimony that violated his Sixth Amendment right to confront the witnesses
against him. Appellant refers to testimony for which there was either no objection
or no adverse ruling. And, appellant’s sustained objections were based on hearsay,
not the Confrontation Clause of the Sixth Amendment. Thus, appellant has not
preserved error. See Tex. R. App. P. 33.1; see also Reyna v. State, 168 S.W.3d
173, 179 (Tex. Crim. App. 2005).
Appellant’s eighth issue is overruled.
V. MODIFICATION OF THE JUDGMENT
The State contends that the trial court’s judgment should be modified
because it incorrectly reflects that appellant (1) pleaded true to the motion to
adjudicate and (2) violated the terms of community supervision as set out in the
original, rather than second amended, motion to adjudicate.
This court may reform a judgment “to make the record speak the truth”
when the matter has been called to the court’s attention from any source. See
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French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v.
State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d)); see also Tex. R.
App. P. 43.2(b). We agree with the State that the judgment should be modified to
reflect that appellant pleaded not true and that appellant violated the second
amended, rather than original, motion to adjudicate. See Houston-Randle v. State,
499 S.W.3d 912, 915–16 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
VI. CONCLUSION
Each of appellant’s issues is overruled. The trial court’s judgment is
affirmed as modified to reflect that appellant pleaded not true to the State’s
allegations and that appellant violated the second amended motion to adjudicate.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).
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