David Glen Johnson v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2005
• Docket: 01-02-01051-CR
• Status: Published

Opinion

Opinion issued June 30, 2005

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-02-01051-CR

---

DAVID GLEN JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 867593

---

MEMORANDUM OPINION

          Appellant, David Glen Johnson was charged with the capital murder of Randall Blasdel. He pleaded not guilty. The first trial ended in a mistrial because the jury was unable to agree on a verdict. At his second trial, the jury found appellant guilty, and the court sentenced him to life in prison. Appellant filed a motion for new trial and requested a hearing. The trial court denied appellant’s request for a hearing, and appellant filed this appeal, which included a point of error asserting that the trial court abused its discretion by denying a hearing on his motion for new trial. We sustained this point of error, ordered the trial court to conduct a hearing on appellant’s motion for new trial, and abated the appeal. The trial court conducted the hearing and orally denied appellant’s motion for new trial. In his four remaining points of error, appellant claims ineffective assistance of counsel. We affirm.

BACKGROUND

          Randall Blasdel was killed by a gunshot to his head at approximately 4:30 p.m. on Sunday, January 30, 2000 in the parking lot of a motel. The State presented the testimony of two witnesses, Juan Rodriguez and Allen Elliott, who were present at the scene when the murder was committed.

          Rodriguez testified that Derrick Porter contacted him on January 29, 2000 asking to buy 200 pounds of marijuana. Rodriguez testified that, after he met with Porter to obtain proof that Porter had the money for the marijuana, they arranged to meet to make the exchange. Rodriguez testified that, at approximately 4:00 p.m. on Sunday, January 30, 2000, he met Porter, who was accompanied by a black man wearing a brimmed hat, in the parking lot of a restaurant adjacent to the motel where he had rented a room in which to make the exchange. At trial, Rodriguez identified appellant as the black man with the brimmed hat and testified that appellant and Porter were in a Jeep with a brown top. According to Rodriguez’s testimony, Porter pushed him to the floor when they entered the motel room and appellant pulled out a gun. Rodriguez stated that Porter made him disrobe down to his underwear and that, after Porter left the motel room with his clothes and other possessions, appellant shot him three times. Rodriguez stated that he dialed 911 after appellant fled and that he looked out the window after he heard more gunshots and saw the Jeep, followed by his car, leaving the parking lot. Rodriguez said he also saw a man lying on the ground and blood on the pavement and he left the motel room to seek help.

          Elliott, the area manager for the motel, testified that, on January 30, 2000, he was in the parking lot of the motel at 4:30 p.m. when he heard a “pop, pop, pop” noise. He stated that, after hearing the noise, he saw a white man and a black man walking towards each other. Elliott testified that he heard a gunshot as he was getting into his car and looked up to see the black man run to a “Jeep type vehicle” with a brown top and drive quickly away. Elliott stated that the black man was wearing a brimmed hat. Elliott said that he went to check on the white man and found him lying motionless on the ground. Elliott said he also encountered Rodriguez, who had blood all over his body, dressed only in boxer shorts.

DISCUSSION

          Appellant, in four points of error, asserts that he was denied the effective assistance of counsel in violation of his rights under the Sixth Amendment to the U.S. Constitution and article I, section 10 of the Texas Constitution. Specifically, appellant contends that his trial counsel were ineffective because they did not investigate, interview available alibi witnesses, obtain the record from appellant’s previous trial, or present appellant’s alibi to the jury. 

          The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Our review of appellant’s trial counsel’s performance must be highly deferential. Strickland, 466 U.S. at 690, 104 S. Ct. at 2065. We determine the reasonableness of counsel’s challenged conduct in context and view it as of the time of counsel’s conduct. Id. We are to assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Bone, 77 S.W.3d at 833 n.13. The policy behind this assumption is that “[i]ntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

          Appellant faults his trial counsel, Joe Roach and Jeff Hale, for failing to interview potential alibi witnesses and points to nine witnesses’ affidavits, which were attached to his motion for new trial, as proof of the witnesses’ availability, credibility, and willingness to testify that they had seen appellant during a Super Bowl party at his home on the day of the murder. These affidavits were not admitted into evidence, and, even if they could constitute proof of the witnesses’ availability and credibility, only the affidavit of appellant’s wife places him at the Super Bowl party at the time of the murder.

          Roach and Hale testified at the motion for new trial hearing. Roach testified that, when he asked appellant for the names of the people who attended the Super Bowl party, appellant could only provide the names of his wife and Darren Johnson. Roach said that he did not believe that appellant’s wife or Darren Johnson had been able to identify for him any other attendees of the party.

          Hale testified that he interviewed appellant’s wife, appellant, Porter, and potential alibi witness Darren Johnson about the Super Bowl party. Hale testified that he and appellant discussed calling some of the asserted alibi witnesses, but Hale determined that the witnesses would not be credible and could not provide useful testimony.

          Roach testified that he did not call appellant’s wife to testify because her testimony that appellant was at home between 3:00 p.m. and 5:00 p.m that Sunday could have been easily contradicted by cell phone records placing appellant’s cell phone in the cell grid that encompassed the site of the murder. Hale testified that he and Roach were concerned about suborning perjury and that appellant’s wife’s truthful testimony might have incriminated appellant because some of the cell phone calls between 3:00 p.m. and 5:00 p.m. were made between appellant and his wife.

          Appellant also finds fault with his trial counsel’s strategic decision not to call an alibi witness, Darren Johnson, who was standing by in case his testimony was needed. Darren Johnson was the only alibi witness who testified in appellant’s first trial, in which the jury had hung nine to three in favor of conviction, according to appellant’s trial counsel. In the first trial, the State emphasized in argument to the jury that appellant had produced only one alibi witness out of all the people who allegedly attended the Super Bowl party. Contrary to appellant’s assertions in his brief, Roach and Hale were aware of the State’s argument in the first trial and testified that they discussed with appellant whether or not to call Darren Johnson. Roach testified that he made the strategic decision, with appellant’s agreement, that Darren Johnson was not a credible witness and calling him would only allow the State to emphasize again that only one of the attendees at the Super Bowl party came forward to give alibi testimony.

          Finally, appellant contends that Roach and Hale were ineffective because they did not obtain the record from appellant’s first trial. However, appellant admits that his attorneys did attempt to obtain a free transcript for him. Hale also stated that, although appellant would not pay for the transcript from the first trial, appellant’s counsel did have a transcript from the trial of Derrick Porter and full access to the State’s files regarding both Porter and appellant.

          Appellant’s trial counsel presented sound explanations for their actions or inactions and showed that their decisions were based on trial strategy. That other counsel might have made different decisions does not render trial counsel’s assistance ineffective. See Damian v. State, 881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). There is a strong presumption that an appellant’s trial counsel’s conduct falls within a wide range of reasonable professional assistance and might be considered sound trial strategy, and appellant has not demonstrated that his counsel’s conduct was outside this range. See Bone, 77 S.W.3d at 836.

          We overrule appellant’s four points of error.

CONCLUSION

      We affirm the judgment of the trial court. 

                                                   Sam Nuchia

                                                   Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).