Michael James Newsome and Michael Anthony Moore v. Doug Dretke, et al--Appeal from 369th District Court of Anderson County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2008 » Michael James Newsome and Michael Anthony Moore v. Doug Dretke, et al--Appeal from 369th District Court of Anderson County

State: Texas

Court: Texas Northern District Court

Docket No: 12-08-00105-CV

Case Date: 09/24/2008

Plaintiff: Michael Lee Smith

Defendant: The State of Texas--Appeal from 82nd District Court of Falls County

Preview:Jermaine Craig Harris v. State of Texas--Appeal from
County Court at Law No. 2 of Midland County
Opinion filed July 26, 2007
Opinion filed July 26, 2007
In The
Eleventh Court of Appeals
No. 11-05-00411-CR
JERMAINE CRAIG HARRIS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Midland County, Texas
Trial Court Cause No. CR102,428
O P I N I O N
The jury convicted Jermaine Craig Harris of possession of marihuana in an amount less than two ounces. The jury
assessed punishment at 180 days confinement and a $2,000 fine. The imposition of the confinement portion of the
sentence was suspended, and appellant was placed on community supervision for one year. We affirm.
There is no challenge to the sufficiency of the evidence. Midland County Deputy Sheriff Thomas Hunnicutt testified
that, when he is off duty, he works as a security guard at the apartment complex where he lives. On January 2, 2004,
while Deputy Hunnicutt was performing a Awalk-through@ at the apartment complex, he smelled marihuana as he
passed by appellant and he saw something burning in appellant=s hand. When Deputy Hunnicutt yelled Ahey@ at
appellant, appellant turned around and dropped the burning object on the ground. Deputy Hunnicutt picked it up and
determined it was a Ablunt,@ a cigar hollowed out and filled with marihuana. He then arrested appellant for
possession of marihuana.
Appellant testified at trial that he went to the apartment complex to pick up a friend. As he was walking toward his
friend=s apartment, appellant saw a black male smoking what appeared to be a cigarette. Deputy Hunnicutt walked by
the unidentified black male and appellant. Deputy Hunnicutt said, AHey, what are y=all doing?@ The unidentified
black male ran away. Appellant went toward Deputy Hunnicutt. Deputy Hunnicutt asked appellant what he was
smoking. Appellant replied that he was not smoking anything. Deputy Hunnicutt picked up a brown cigar containing
marihuana that was still smoking and showed it to appellant. Appellant told Deputy Hunnicutt that the marihuana was
not his. Deputy Hunnicutt told appellant to walk to the patrol car and to stay there while he looked for the unidentified
black male. Deputy Hunnicutt returned a few minutes later without the black male and placed appellant under arrest.
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In his sole issue on appeal, appellant complains that he received ineffective assistance of counsel. To prevail on an
ineffective-assistance-of-counsel claim, the familiar Strickland test must be met. Wiggins v. Smith, 539 U.S. 510, 521
(2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98, 101 02 (Tex. Crim. App.
2005). Under Strickland, we must determine whether counsel=s performance was deficient and, if so, whether the
defense was prejudiced by counsel=s deficient performance. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687;
Andrews, 159 S.W.3d at 101. We must indulge a strong presumption that counsel=s conduct fell within the wide range
of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Staffordv. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App.
1991).
Appellant=s attorney on appeal filed a brief in this court arguing that appellant=s trial counsel was ineffective in failing
to conduct an independent investigation and in failing to utilize DNA evidence. We allowed that attorney to withdraw
and abated the appeal for the appointment of new appellate counsel. Appellant=s newly appointed counsel filed a
supplemental brief arguing that the trial strategy of appellant=s trial counsel was formed without sufficient
investigation and preparation and that trial counsel was ineffective under the standards of United States v. Cronic, 466
U.S. 648 (1984).
An attorney must be acquainted with not only the law but also the facts of the case before the attorney can render
reasonably effective assistance of counsel. Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987); Butler v. State,
716 S.W.2d 48, 54 (Tex. Crim. App. 1986). We will not reverse a conviction unless the consequence of the failure to
investigate is that the only viable defense available to the accused is not advanced and there is a reasonable probability
that, but for counsel=s failure to advance the defense, the result of the proceeding would have been different.
McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).
Appellant=s trial counsel testified at a hearing on the motion for new trial that he met with appellant soon after being
appointed to the case. At that time, appellant told his version of the events to his trial counsel. Trial counsel then
reviewed the clerk=s file, and he reviewed the discovery provided by the State through its Aopen file@ policy. Trial
counsel stated that the case was Apretty much as [appellant] had kind of characterized it. It was going to be his word
against the officer=s.@
Appellant argues that his trial counsel was ineffective in failing to call other witnesses to testify on his behalf.
Appellant=s trial counsel testified that appellant did not reveal any witnesses who would be helpful to his case and that
Aeverything was pretty much undisputed between the State and [appellant].@ Appellant did not know the unidentified
black male who was present at the apartment complex. Appellant has not shown that any testimony from the
unidentified black male would have been beneficial to his case. Appellant contends that his trial counsel should have
called appellant=s friend who resided at the apartment complex; however, there was no dispute that appellant was at
the apartment complex to pick up his friend.
Appellant=s trial counsel testified that he did not request DNA testing on the marihuana because the State had the
burden of proof and he felt that the absence of forensic evidence connecting appellant to the marihuana created
reasonable doubt. Appellant has not shown that trial counsel=s decision concerning the DNA evidence was not based
upon sound trial strategy. Appellant also has not shown that the result of the proceeding would have been different but
for trial counsel=s failure to investigate.
In Cronic, 466 U.S. at 658, the Supreme Court recognized that in some circumstances the accused is not required to
show prejudice but rather that there is a presumption of prejudice. Such circumstances include the complete denial of
counsel, the failure of counsel to subject the prosecution=s case to meaningful adversarial testing, and the situation in
which surrounding circumstances make it unlikely that any counsel could provide effective assistance. Cronic, 466 U.S.
at 659-60. We do not find the presence of the extreme circumstances required to make a presumption of prejudice.
Appellant has not shown that he received ineffective assistance of counsel. Appellant=s sole issue on appeal is
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overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
July 26, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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