S.I.R. Enterprises, Inc. d/b/a Roberts Carpet & Fine Floors v. Uptown Melodies d/b/a Sky Bar--Appeal from Co Civil Ct at Law No 3 of Harris County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2008 » S.I.R. Enterprises, Inc. d/b/a Roberts Carpet & Fine Floors v. Uptown Melodies d/b/a Sky Bar--Appeal from Co Civil Ct at Law No 3 of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 01-08-00041-CV

Case Date: 06/12/2008

Plaintiff: India Rice

Defendant: The State of Texas--Appeal from 412th District Court of Brazoria County

Preview:Affirmed and Memorandum Opinion filed March 31, 2009.

In The

Fourteenth Court of Appeals
_______________ NO. 14-07-00575-CR _______________ INDIA RICE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 50,703

MEMORANDUM OPINION
A jury convicted appellant India Rice of knowingly possessing, with intent to pass, a forged writing. The trial court assessed punishment at two years' confinement in state jail, suspended the sentence and placed appellant on probation for five years, and assessed a fine of $2,500. Appellant challenges her conviction on the ground that she received ineffective assistance of counsel. We affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND In July 2005, appellant purchased a large-screen television from an electronics store using a check drawn on the account of the complainant. At appellant's trial, the complainant testified that she did not know appellant and had not authorized the transaction. The complainant also stated that her "identity had been stolen." In addition, a former store employee identified appellant as the person who completed and provided the check to pay for the television. The store manager testified that appellant was the individual who gave him the necessary information to verify the check. Both of these witnesses also testified that another female was present with appellant when the television was purchased. A video of a portion of the transaction was played for the jury, but it did not show appellant filling out or passing the check to the store employee. A handwriting expert1 testified that he could not conclude whether appellant had written the check because the copy provided to him, which had been sent via facsimile to his office, was not clear enough for a proper analysis. After hearing the evidence, a jury found appellant guilty of knowingly possessing, with intent to pass, a forged writing. Appellant elected to have the trial court assess punishment; her punishment hearing was delayed so that a pre-sentence investigation could be completed. After the jury's verdict was returned but before the sentencing hearing, the handwriting expert, at the order of the trial court and in the court's chambers, completed a comparison of the handwriting on the original check used to pay for the television and a "handwriting exemplar" form completed by appellant. In his report, which is included in our record, the analyst stated he believed appellant had written the check because of "the significant similar characteristics noted in the [s]tyle of the handwriting, as well as the significant characteristics found in the slant, spacing, and curvatures of the letters in the handwriting."

1

Although this expert was retained by the defense, the State stipulated on the record to his qualifications.

2

A pre-sentence investigation report was prepared, in which the investigator recommended against placing appellant on community supervision because she refused to take responsibility for the offense.2 The investigator testified regarding her recommendation, but also acknowledged that appellant could be successful at completing probation. A friend of appellant's testified that she believed appellant would be a good candidate for probation and would abide by the court's rules. Additionally, appellant testified that, although she disagreed with the jury's verdict, she would do whatever was necessary to stay out of prison so she could remain at home with her 13-year-old son. The trial court sentenced appellant to two years' in state jail, but ordered the sentence suspended and placed appellant on probation for five years. The trial court also assessed a fine of $2,500. A motion for new trial was overruled by operation of law, and this appeal ensued. II. I SSUE P RESENTED In a single issue, appellant argues that she was denied her right to effective assistance of counsel because her trial counsel failed to investigate her case, interview witnesses, and locate the original check prior to trial. III. A NALYSIS A. Standard of Review We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, an appellant must prove (1) his trial counsel's representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial. Id. at 687. To establish both

At the conclusion of the sentencing hearing, the trial court adjourned until appellant completed an instanter drug test.

2

3

prongs, the appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. at 690

Download 85544.pdf