Ahmed Afeef v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 17, 2023
• Docket: 05-22-00838-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed August 17, 2023

SIn The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00838-CR

AHMED AFEEF, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-82516-2022

MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Smith Opinion by Justice Molberg

Ahmad Afeef entered a guilty plea to aggravated robbery and, after a

punishment trial, was sentenced to thirty-five years’ imprisonment. He appeals,

complaining his trial counsel was ineffective. We affirm in this memorandum

opinion. See TEX. R. APP. P. 47.4.

On direct appeal, we indulge a strong presumption that trial counsel’s conduct

fell within the wide range of reasonable professional assistance. See Strickland v.

Washington, 466 U.S. 668, 669 (1984). Ineffective assistance of counsel claims

have two components: (1) deficient performance and (2) prejudice, meaning a there is a reasonable probability that the result of the proceeding would have been different

without the deficient performance. See id. at 687. Ineffective assistance claims are

notoriously difficult to sustain on direct appeal, because the trial record often fails

to supply a sufficient basis for a claim and because, without counsel’s explanation

for her actions or inactions, many will fall within presumptively reasonable strategic

choices counsel must make in the course of trial. See Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001). We must not speculate in our review; rather, ineffective assistance of counsel

claims must be firmly founded in the record. Bone, 77 S.W.3d at 835.

Mr. Afeef first claims counsel should not have advised him to plead guilty

because the State could not prove the aggravated element and that counsel’s

investigation was deficient because, had he interviewed the complaining witness

more than once, he would have known the victim would testify he did not see Mr.

Afeef holding a knife during the robbery. These claims fail because, regardless what

the complaining witness testified to, the video evidence the State offered plainly

shows Mr. Afeef holding a knife in his hand throughout the entire robbery. See

Anderson v. State, 461 S.W.3d 674, 679–80 (Tex. App.—Texarkana 2015, pet. ref’d)

(video evidence buoyed State’s proof when complaining witness was unable to

provide certain details about the perpetrator due to “weapon focus” during

aggravated robbery). And, the complaining witness testified, having reviewed the

video at trial, that he had seen Mr. Afeef carrying a knife “many times” before.

–2– Mr. Afeef held the knife when he violently shoved the complaining witness

to the ground in the cashier area of the convenience store and as he stood over the

man, demanded items, and took and held money from the register while he stood

right next to the complaining witness. See Garcia v. State, No. 14-19-00975-CR,

2021 WL 3576372, *2 (Tex. App.—Houston [14th Dist.] Aug. 12, 2021, pet. ref’d)

(mem. op., not designated for publication) (fact that no witness saw knife in Garcia’s

hands was “not determinative” when other evidence sufficiently proved he used or

exhibited it). Jurors were reasonable to conclude that Mr. Afeef used or exhibited

the knife, a deadly weapon, throughout the robbery. See TEX. PENAL CODE

§§ 1.07(a)(17); 29.03(a)(2) (“uses or exhibits a deadly weapon”); Patterson v. State,

769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (explaining what use and exhibit mean

in this context). Therefore, the record only indicates that counsel correctly advised

Mr. Afeef regarding the “aggravated” element and that any failure to perform further

investigation does not demonstrate deficient performance on this record.

Mr. Afeef next complains of a statement counsel made during punishment

phase closing argument, but takes the comment out of context. Trial counsel began

by dismissing the idea that this was a case worthy of a life sentence, and began going

downward from there, suggesting to jurors that, for a fifty-five-year-old man such

as Mr. Afeef, a life sentence was something closer to thirty years. From there,

counsel pivoted, starting from what he suggested may be a too-low number, eight

years, moving to ten, and then to twenty years. Counsel rhetorically asked if a

–3– twenty-year sentence would make the complaining witness happy. Mr. Afeef seizes

on the reference to the complaining witness, suggesting that trial counsel was

“representing the [S]tate’s witness.” But trial counsel continued, suggesting twenty

years would not make the complaining witness happy, from which it appears on this

record that counsel was suggesting a sentence less than twenty years. Indeed,

counsel later suggested jurors should “start at the lower end, and if you have to work

your way up, you do that, but this is not the case you start at the high end and work

your way down.”

We disagree that counsel was somehow advocating for the complaining

witness or the State, and conclude that on this record, counsel’s comments constitute

a reasonable argument to a jury who had to recommend some term of years for his

client. See Kennedy v. State, No. 13-15-00457-CR, 2016 WL 4145939, *5 (Tex.

App.—Corpus Christi–Edinburg Aug. 4, 2016, pet. ref’d) (mem. op., not designated

for publication) (discussing strategic choice in counsel’s sentencing argument). We

construe trial counsel’s argument, on this record and without any explanation from

counsel, as a reasonable trial strategy to mitigate punishment. The fact that the jury

ended up recommending a thirty-five-year sentence is of little moment, as that was

entirely within their discretion. We reject this basis for finding counsel ineffective.

Finally, Mr. Afeef complains that trial counsel was ineffective for not having

him evaluated for competency prior to trial. The record does not provide a sufficient

basis for us to agree. See Bone, 77 S.W.3d at 833–34. In this regard, the record

–4– includes the plea colloquy, where Mr. Afeef mentioned he had mental health issues

but that he was being treated and was competent to proceed with his guilty plea. He

agreed he had sufficient present ability to communicate with his lawyer and that he

understood the proceedings. Because this direct appeal record contains an

insufficient factual basis to support the claim and contains no detail regarding

counsel’s decision-making process for not requesting a competency evaluation pre-

trial, this is the type of issue for which a petition for writ of habeas corpus is the

“appropriate vehicle” to develop the record. See Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002). We cannot conclude counsel was ineffective for not

having Mr. Afeef evaluated for competency prior to trial. See Bone, 77 S.W.3d at

833–34.

Having rejected each basis for Mr. Afeef’s ineffective assistance of counsel

claim, we affirm the trial court’s judgment.

/Ken Molberg/ KEN MOLBERG JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 220838F.U05

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AHMED AFEEF, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-22-00838-CR V. Trial Court Cause No. 416-82516- 2022. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Molberg. Justices Carlyle and Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered August 17, 2023.

–6–