Christopher Wayne McCoy v. The State of Texas--Appeal from 174th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-05-00155-CR

Case Date: 11/14/2005

Plaintiff: Tory James Hebert

Defendant: The State of Texas--Appeal from 163rd District Court of Orange County

Preview:In The

Court of Appeals Ninth District of Texas at Beaumont _________________
NO. 09-09-00506-CR

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TORY JAMES HEBERT, Appellant V. THE STATE OF TEXAS, Appellee _________________________________________________________________ On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-090549-R ___________________________________________________________________ MEMORANDUM OPINION Tory James Hebert pled guilty to burglary of a habitation. Following a contested sentencing hearing to the bench, the trial court assessed his punishment at imprisonment for fifteen years. In a single issue, Hebert appeals and contends that he received ineffective assistance of counsel. We affirm the trial courts judgment. On appeal, Hebert asserts that he received ineffective assistance of counsel because of his trial counsels "failure to question witnesses and to present certain mitigation evidence." Specifically, Hebert complains that his trial counsel neither crossexamined the complaining witness during sentencing nor objected to any of her

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testimony. Hebert also contends that his trial counsel failed to make the trial court aware of his fear of the co-defendant. A two-pronged test is applied to resolve ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish the ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsels representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsels deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687; Garza, 213 S.W.3d 347-48; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is "highly deferential" to trial counsel, as we presume "that counsels actions fell within the wide range of reasonable and professional assistance." 213 S.W.3d at 348. When faced with complaints about a trial counsels alleged deficiencies in a trial, any judicial review must "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Trial counsels decisions are viewed with great deference when trial counsels reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Absent a record that contains the trial counsels explanation of his strategy, appellate courts are not at liberty 2

to find trial counsels conduct ineffective, unless the challenged conduct is "so outrageous that no competent attorney would have engaged in it." Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Additionally, any Strickland claim must be ",,firmly founded in the record and ,,the record must affirmatively demonstrate the meritorious nature of the claim." Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 814) (declining to speculate on counsels failure to object to hearsay in light of a silent record). In this case, Hebert filed a motion for new trial. Hebert testified and asserted that his trial counsel did not cross-examine the complaining witness during the sentencing hearing despite the request he made to his trial counsel to do so. According to Hebert, the complaining witness could have been cross-examined about inconsistent statements that she made. But, during the hearing for new trial, Hebert could not recall any of the witnesss inconsistent statements. Further, during his sentencing hearing, Hebert acknowledged that but for "a few small discrepancies," he agreed with the complaining witnesss account of the burglary. Additionally, during the hearing on his motion for new trial, Hebert contended that his trial counsel failed to make the trial court aware that he feared the co-defendant. But the record does not support Heberts claim. During Heberts sentencing hearing, he testified that he did not want to commit the offense, but that the co-defendant would not "back down." He further explained that he did not know what the co-defendant would have done had he not agreed to commit the offense, nor did he know what the co3

defendant would have done had he decided to let the complaining witness go. Additionally, although there was a hearing on Heberts motion for new trial, trial counsel did not testify, so the record does not contain trial counsels explanation for having chosen to represent Hebert in the manner that is reflected by the record. Trial counsels decisions may have been grounded on a reasonable appreciation of a reasonable trial strategy given the specific facts and circumstances attendant to this trial. Because trial counsels explanation of his strategy is absent from the record, we may not, on this record, conclude that Heberts trial counsel was ineffective. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (stating that "rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation"). Moreover, having reviewed the record, the challenged conduct was not "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440). On the record before us, we conclude that Heberts ineffective assistance claim is without merit. We overrule Heberts issue and affirm the trial courts judgment. AFFIRMED.

________________________________ HOLLIS HORTON Justice Submitted on July 12, 2010 Opinion Delivered July 21, 2010 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ. 4

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