Hildreth Jr., Byron Wilson v. State

• Court: Court of Appeals of Texas
• Decided: May 20, 2004
• Docket: 14-02-01179-CR
• Status: Published

Opinion

Affirmed and Memorandum Majority and Concurring Opinions filed May 20, 2004

Affirmed and Memorandum Majority and Concurring Opinions filed May 20, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01179-CR

BYRON WILSON HILDRETH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________________________________

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 888,614

_________________________________________________________________________

M E M O R A N D U M   C O N C U R R I N G   O P I N I O N

The court correctly disposes of appellant=s first and second points of error challenging the legal and factual sufficiency of the evidence.  I write separately to address the portion of appellant=s third point of error raising ineffective assistance of counsel in the guilt-innocence stage of trial.

Appellant failed to satisfy the first prong of the Strickland test^[1] and, for this reason, his ineffective assistance of counsel claim fails.  Notably, appellant raised ineffective assistance of counsel in the context of a motion for new trial.  As the Court of Criminal Appeals recently noted in its unpublished opinion in State v. Jones, the standards are not so clear for reviewing claims of ineffective assistance raised in this context.  State v. Jones, No. 678-02, 2004 WL 231309, *8 (Tex. Crim. App. Jan. 28, 2004) (not designated for publication).  A trial court=s ruling denying a motion for new trial is typically reviewed under an abuse of discretion standard.  Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).  However, the performance and prejudice components of the Strickland test are mixed questions of law and fact.  Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984).  We must afford almost total deference to a trial court=s determination of the historical facts and of mixed questions of law and fact that turn on the credibility and demeanor of witnesses.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  A reviewing court is not bound by the trial court=s legal conclusion on the issue of ineffectiveness and may independently determine that issue while giving deference to the trial court=s findings on subsidiary questions of fact.  See id.

To meet the standard for establishing 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.  See Strickland, 466 U.S. at 688B92.  The majority addresses the prejudice prong of this two-prong analysis in concluding that appellant has not met the standard for ineffective assistance of counsel.  The majority finds that because the jury heard the testimony of appellant and others directly involved in the matters in issue, it would be difficult to conclude that testimony from three favorable character witnesses Acreates a reasonable probability that a different determination regarding his guilt would have resulted from it.@  Determining how the testimony of three different witnesses might have impacted the jury=s evaluation of the evidence for purposes of the prejudice analysis is a complex undertaking, particularly when appellant=s credibility was important to the case.  However, the court need not even undertake the difficult prejudice analysis in Strickland=s second prong because appellant cannot satisfy the first prong.

The record in this case contains conflicts in the testimony of the witnesses regarding whether trial counsel=s representation fell below the requisite standard.  Trial counsel testified that her failure to call character witnesses was not a matter of strategy; rather, she did not do so because, in some cases, appellant instructed her not to contact them and he otherwise failed to provide her with a list of names.  Though appellant and his witnesses gave contrary testimony, the trial court was in the best position to evaluate the credibility of the witnesses and resolve any conflicts with regard to whether trial counsel investigated character witnesses on appellant=s behalf.  See Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999).  The trial court could have chosen to believe or disbelieve all or any part of the witnesses= testimony.  See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Apparently, the trial court  resolved the conflicts in favor of trial counsel=s version of events, believing appellant did not provide his trial counsel with the names of character witnesses or was otherwise uncooperative with the investigation. 

Although trial counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, the reasonableness of counsel=s actions may be determined or substantially influenced by the defendant=s own statements or actions.  Strickland, 466 U.S. at 691.  A[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel=s failure to pursue those investigations may not later be challenged as unreasonable.@  Id.  Likewise, when the defendant has instructed counsel not to contact or speak to certain potential character witnesses, it is not unreasonable for counsel to refrain from doing so.  Thus, applying the first prong of the ineffective assistance standard, appellant cannot refuse to provide his attorney with the information necessary to investigate potential character witnesses and then claim the attorney=s actions were not reasonable.  Having failed to satisfy the first prong of the Strickland test, appellant cannot prevail on his ineffective assistance claim, and this court need not reach the second prong. 

Though I do not join the majority=s analysis for appellant=s third point of error, I respectfully concur in the court=s decision to overrule appellant=s ineffective assistance of counsel challenge and affirm the judgment of the trial court.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Majority and Concurring Opinions filed May 20, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.  (Edelman, J., majority).

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

---

^[1]  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).