Christopher Clinton Hussey v. The State of Texas--Appeal from 199th District Court of Collin County

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State: Texas

Court: Texas Northern District Court

Docket No: 08-05-00051-CR

Case Date: 02/09/2006

Plaintiff: Christopher Clinton Hussey

Defendant: The State of Texas--Appeal from 199th District Court of Collin County

Preview:Christopher Clinton Hussey v. The State of Texas--
Appeal from 199th District Court of Collin County
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
CHRISTOPHER CLINTON HUSSEY, ) No. 08-05-00051-CR
)
Appellant, ) Appeal from
)
v. ) 199th District Court
)
THE STATE OF TEXAS, ) of Collin County, Texas
)
Appellee. ) (TC# 199-82109-02)
O P I N I O N
Appellant appeals his two-count conviction of aggravated robbery. He pled guilty and was sentenced by a jury to
twenty years confinement on each count. Finding no ineffective assistance of counsel, we affirm.
FACTUAL SUMMARY
On the afternoon of September 1, 2002, Appellant entered an Eckerd s store located in Collin County. The pharmacist
and a cashier were working in the pharmacy. The cashier was manning the prescription drop/pick up counter when
Appellant approached him with a gun. He was looking for Xanax and Valium and the pharmacist handed him one
bottle of Valium and four bottles of Xanax. Appellant did not steal any other items and did not attempt to conceal his
identity.
Police officers arrived on the scene and reviewed the video surveillance. Detective Luke Grant noticed the robber
looked familiar. A broadcast was placed to all area agencies regarding the aggravated robbery. Shortly thereafter,
Detective Grant received a phone call from Detective Pat Hussey of the Plano Police Department. Detective Hussey
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had learned that his son committed the robbery and he believed his son was suicidal. Detective Grant then recognized
Appellant as a former student in his Drug Abuse Resistance Education Program. Appellant was eventually
apprehended by police in Grayson County, near the Oklahoma border.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue for review, Appellant claims he was denied the effective assistance of counsel in violation of his Sixth
and Fourteenth Amendment rights. Specifically, he contends his attorney failed to secure a hearing on the motion for
new trial.
Standard of Review
We review claims of ineffective assistance of counsel under a two-pronged test. First, an appellant must establish
counsel s performance fell below an objective standard of reasonableness under prevailing professional norms.
Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mallett v. State, 65 S.W.3d
59, 62-63 (Tex.Crim.App. 2001); Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Secondly, he must
demonstrate there is a reasonable probability that the result of the proceeding would have been different but for
counsel s deficient performance. Strickland, 466 U.S. at 687, Mallett, 65 S.W.3d at 62-63. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63. Claims of ineffective
assistance must be proved by a preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.
2002).
There is a strong presumption that counsel s conduct falls within a wide range of reasonable professional assistance.
Mallett, 65 S.W.3d at 63. In essence, this requires that the defendant overcome the presumption that the challenged
action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). To
defeat the presumptions, allegations of ineffectiveness of counsel must be firmly founded in the record. Mallett, 65
S.W.3d at 63, citing Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Usually, the record on a direct
appeal will not be sufficient to show that counsel s representation was so deficient as to meet the first prong of the
Strickland standard because the reasonableness of counsel s choices often involve facts that do not appear in the
appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003), citing Mitchell v. State, 68 S.W.3d
640, 642 (Tex.Crim.App. 2002). In the majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel s actions. Mallett, 65 S.W.3d at 63.
Failure to Secure A Hearing
Following the entry of judgment, trial counsel filed a notice of appeal. Three days later, Appellant filed a pro se
motion for new trial along with a sworn affidavit, contending that his attorney rested without consulting him and failed
to give him the option of testifying on his own behalf. The trial court took the pro se motion under advisement. Some
two weeks later, the court appointed J. Mark Bragg as appellate counsel. Bragg has since been replaced by Lawrence
Mitchell who now represents Appellant on appeal. The motion for new trial was overruled by operation of law.
The record is silent as to why Bragg failed to request a hearing on Appellant s motion for new trial. Counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Bone, 77 S.W.3d at
836. Mere failure to request a hearing does not establish ineffective assistance because motion for new trials are often
used simply to extend appellate timetables. Yarbrough v. State, 57 S.W.3d 611, 616 (Tex.App.--Texarkana 2001, pet.
ref d), citing Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App. 1998). Because the record is silent as to counsel s
motivation, an application for writ of habeas corpus would be a more appropriate vehicle. Rylander, 101 S.W.3d at
110-11. Since Appellant has not overcome the strong presumption that counsel s conduct was reasonable we overrule
his sole issue and affirm the judgment of the trial court.
February 9, 2006
ANN CRAWFORD McCLURE, Justice
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Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
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