Allison Marie Birdow v. State

• Court: Court of Appeals of Texas
• Decided: January 13, 2009
• Docket: 14-07-01098-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 13, 2009

Affirmed and Memorandum Opinion filed January 13, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-01098-CR

ALLISON MARIE BIRDOW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1118988

M E M O R A N D U M   O P I N I O N

Appellant Allison Marie Birdow challenges her conviction for robbery, claiming she received ineffective assistance of counsel.  We affirm.

I.  Factual and Procedural Background

Appellant was charged by indictment with aggravated robbery.  Appellant=s attorney and the presiding judge signed an order for appellant=s psychiatric evaluation.  Appellant=s attorney filed two motions for a psychiatric examination to determine appellant=s sanity and competency to stand trial, citing the following reasons:

Defendant is a paranoid schizophrenic.  At the time she is stable on meds.  At the time of the offense, she had been off her meds for 2 weeks.  She heard voices and had no control over her response to the voices.  Defendant has previously been inpatient for psychotic episodes.

The trial court granted both motions.  The professional performing the evaluations concluded appellant was sane at the time of the offense, and she was competent to stand trial.

Appellant=s attorney next filed a motion to appoint an independent psychiatric expert witness; however, the trial court did not rule on the motion.  The following day, appellant pleaded Aguilty@ to the reduced charge of robbery.  After a presentence investigation, the trial court found appellant guilty of robbery and assessed punishment at ten years= confinement, based on an enhancement paragraph for a prior conviction.  On appeal, appellant complains in a single issue that she received ineffective assistance of counsel because her counsel failed to seek the appointment of a mental health expert to assist in her defense.

II.  Analysis

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 688B92; 104 S. Ct. at 2064B67.  Moreover, appellant bears the burden of proving her claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). 

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy.  See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  Appellant did not file a motion for new trial in this case.

A defendant is entitled to the assistance of a mental health expert when the defendant=s sanity is likely to be a significant factor.  See Ake v. Oklahoma, 470 U.S. 68, 74, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).  Appellant=s counsel did move for the  appointment of  an independent psychiatric expert witness; however, the trial court did not rule on appellant=s motion before appellant pleaded Aguilty@.  But, even presuming without deciding that on the record before us appellant was entitled to a defense mental health expert, there is no evidence of counsel=s strategy in failing to secure a ruling on the motion before appellant entered a Aguilty@ plea.  To the contrary, the record is silent as to the reasoning or strategy behind counsel=s action or inaction; accordingly, appellant has not rebutted the strong presumption that counsel exercised reasonable professional judgment.  See Thompson, 9 S.W.3d at 814.  No motion for new trial was filed. On this record, to find appellant=s counsel ineffective, we would have to engage in prohibited speculation.  See Stafford v. State, 101 S.W.3d 611, 613B14 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).  Absent evidence of counsel=s strategy, we cannot denounce counsel=s actions as ineffective nor can we determine that there is reasonable probability that the outcome would have been different.  See Maldonado v. State, No. 14-03-00074-CR, 2004 WL 234377, at *3 (Tex. App.CHouston [14th Dist.] Feb. 10, 2004, pet. ref=d) (mem. op., not designated for publication).  For this reason, appellant has not met either prong of the Strickland test.  See id.  Therefore, we overrule appellant=s ineffective-assistance challenge.^[1]

Finding no merit in appellant=s sole issue on appeal, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Although appellant relies on Woods v. State, 59 S.W.3d 833 (Tex. App.CTexarkana 2001), rev=d on other grounds, 108 S.W.3d 314 (Tex. Crim. App. 2003), the Texarkana court lacked jurisdiction to hear the appellant=s claims of ineffective assistance from trial counsel=s failure to request assistance from a mental-health expert before allowing that defendant to enter a Aguilty@ plea.  See Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003) (AWe conclude that the Court of Appeals erred in considering appellant=s ineffective assistance allegations.@).  We distinguish Woods because, in this case, appellant=s counsel did file a motion for an independent psychiatric expert, unlike the counsel in Woods.