H. F. Westerman, Jr. v. State

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00292-CR

H. F. Westerman, Jr.,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court No. 20034654CR2

memorandum Opinion

          Seventy-year-old H. F. Westerman, Jr. was convicted of indecent exposure.  Because we find that Westerman was denied effective assistance of counsel when his trial counsel failed to interview or call a corroborating witness, we reverse.

Background

          Heather Reyna testified that on the day of the incident she parked her car in a grocery store parking lot.  She said that while getting out of her car she noticed Westerman sitting in a truck on the passenger side.  About twenty minutes later, Reyna completed her shopping and was returning to her car.  She glanced into the truck’s open window and saw Westerman sitting on the passenger side holding down his underpants with one hand and masturbating with the other.  Reyna got into her car, pulled into a different parking space, and called 9-1-1.

          Westerman testified that he came to Waco that day to meet a lady with whom he was going to play bingo.  Before he left, he ate some chicken, which apparently upset his stomach.  So, he pulled into the grocery parking lot and went inside.  After using the restroom, Westerman purchased some Pepto-Bismol, a Dr. Pepper, and a bottle of water.  He went back to his truck and got in on the passenger side and sat there for awhile because his stomach was still upset.  He testified that he loosened his belt and unbuttoned his pants because he was uncomfortable.  While sitting there, he drank the Pepto-Bismol.  Westerman speculated that perhaps Reyna saw him shaking the bottle of Pepto-Bismol, but denied ever pulling his underwear down or exposing himself.

          The jury found Westerman guilty of indecent exposure.  The trial court sentenced him to 120 days’ confinement, probated for eighteen months, and a $2,000 fine, with $1,800 probated for eighteen months.  Westerman filed a motion for new trial, which was overruled. 

          On appeal, Westerman argues that (1) the evidence is legally insufficient to support the jury’s verdict; (2) the evidence is factually insufficient to support the jury’s verdict; and (3) he was denied effective assistance of counsel.

Ineffective Assistance of Counsel

          In his third issue, Westerman argues that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel.

          We review a trial court’s ruling on a motion for new trial under an abuse of discretion standard.  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Freeman v. State,  No. 10-03-00267-CR, 2005 Tex. App. LEXIS 3093 at *3 (Tex. App.—Waco, April 20, 2004, no pet. h.).  “When as here the motion for new trial alleges ineffective assistance of counsel, we must determine whether the trial court’s determination of the ineffective assistance claim and denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement.”  Freeman, 2005 Tex. App. LEXIS 3093- at *3.

          To establish ineffective assistance of counsel, an appellant must show that (1) trial counsel’s representation was deficient and (2) but for counsel’s error, there is a reasonable probability that the result of the proceedings would have been different.  Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69, 80 L. Ed. 2d 674 (1984); Davis v. State, 119 S.W.3d 359, 368 (Tex. App.—Waco 2003, pet. ref’d).

          In evaluating whether counsel was deficient, we look to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  An appellant must demonstrate by a preponderance of the evidence that counsel’s representation fell below an objective standard of reasonableness and prevailing professional norms.  Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065.  “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.  An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 814; Davis, 119 S.W.3d at 368-69.

          The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial.  Id., 466 U.S. at 686-87, 104 S. Ct. at 2064.  Appellant must show there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceedings would have been different.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.

          Westerman argues that his trial counsel was ineffective by failing to interview and call a key witness who could corroborate his testimony, as well as witnesses who could testify about his character for truthfulness.

          At the hearing on the motion for new trial, Westerman testified that he told his trial counsel that the lady he was supposed to meet on the day of the incident was Peggy Hendricks and that she was available to testify for him, but his attorney told him it was not necessary.  Westerman introduced a statement written by Peggy Hendricks in which she indicated that she had planned to meet Westerman, but she was running late.  Instead she met him later at the Bingo Hall where she noticed that Westerman “looked really sick” and needed to go to the bathroom frequently.  She stated that Westerman showed her the bottle of Pepto-Bismol he had been drinking from.

          Westerman also produced several statements from individuals, dated after the trial, that he had talked to about coming to court to testify for him.  Westerman testified that he mentioned these individuals to his attorney before trial, but his attorney told him the less people they had, the better.

          Westerman’s attorney testified that Westerman had told several different stories concerning the incident: that he was eating a hot dog, that he was taking a “nature pee,” and that he had an upset stomach.  The last explanation of an upset stomach was the one provided to him shortly before trial, but he could not remember whether this was the day of trial, or within two weeks of trial.  The attorney acknowledged that he knew of Hendricks as a witness, but viewed her testimony as collateral because at the time his trial strategy concerned the “nature pee” which did not encompass a credibility issue.  He also testified that he was aware of the other character witnesses, but explained that calling them would be “suicide” because he did not know which version of Westerman’s story they were told.  Yet, he never interviewed these witnesses to discover what they knew about the incident and what their testimony would be.  He only called Westerman because he looked “credible.”

          An attorney has a duty to make an independent investigation of the facts supporting the defense.  Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).  This includes the responsibility to seek out and interview potential witnesses.  Id.; Freeman, 2005 Tex. App. LEXIS 3093 at **4-5; State v. Thomas, 768 S.W.2d 335, 336-37 (Tex. App.—Houston [14th Dist.] 1989, no pet.).  Also, an attorney has a professional duty to present all available testimony in support of the client’s defense.  Thomas, 768 S.W.2d 335, 336-37.  Westerman testified that Hendricks was available for trial, and Hendricks’s statement indicates her testimony would have been helpful.  Therefore, we find that trial counsel was deficient in failing to conduct a proper investigation of the trial and interview potential witnesses.  Freeman, 2005 Tex. App. LEXIS 3093 at **4-5 (finding trial counsel deficient for failing to conduct an adequate pre-trial investigation); In re I.R., 124 S.W.3d 294, 299 (Tex. App.—El Paso 2003, no pet.) (finding trial counsel deficient for failing to interview potential witnesses).

          The failure to interview or call a witness will constitute prejudice against the defendant if “it results in the failure to advance a viable defense.”  In re I.R., 124 S.W.3d at 300; Butler, 716 S.W.2d at 56.  Three people testified at Westerman’s trial: Reyna, a police officer, and Westerman.  The officer could neither confirm nor deny the indecent exposure, therefore the outcome of the trial balanced upon the credibility of Reyna and Westerman.  The State noted more than once that Hendricks had not been called to testify for Westerman.

          According to her statement, Hendricks would have corroborated significant parts of Westerman’s version of the events.  Given that the trial hinged on credibility, and that the State emphasized that no one was there to corroborate Westerman’s testimony, we cannot say that had Hendricks been interviewed and called to testify at trial the outcome of the trial would not have been different.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  Therefore, we conclude that there is a reasonable probability, a probability sufficient to undermine our confidence in the outcome, that the results of Westerman’s trial would have been different if Westerman’s counsel had interviewed and called Hendricks.  See In re I.R., 124 S.W.3d at 302 (finding ineffective assistance of counsel when a key corroborating witness was not interviewed or called); see also Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  Accordingly, we find that the trial court abused its discretion when it denied Westerman’s motion for new trial.  See Charles, 146 S.W.3d at 208.  We sustain Westerman’s third issue.

Conclusion

          We note that the evidence is legally sufficient, and we do not reach the factual sufficiency question.  Having sustained Westerman’s third issue, we reverse the judgment of the trial court and remand for a new trial.

                                                                   FELIPE REYNA

                                                                   Justice

Before Justice Vance, and

          Justice Reyna

Reversed and remanded

Opinion delivered and filed June 22, 2005

Do not publish

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