COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-003-CR
JEREMY DON SCOTT-ROTH APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
This is an appeal from the trial court’s denial of a motion for new trial
following a revocation hearing. Appellant Jeremy Don Scott-Roth argues in two
points that the trial court abused its discretion by denying his motion for new
trial because (1) his trial counsel rendered ineffective assistance by failing to
impeach a crucial defense witness who allegedly changed his testimony and by
1 … See Tex. R. App. P. 47.4. failing to call Scott-Roth to take the stand to refute testimony from the State’s
witnesses and (2) a crucial defense witness had allegedly been “tampered
with.” We will affirm.
II. B ACKGROUND
In 2002, Scott-Roth pleaded guilty to aggravated assault - family violence
and aggravated assault - against a public servant. Pursuant to a plea bargain
agreement, the trial court sentenced Scott-Roth to ten years’ imprisonment,
suspended the sentence, and placed him on community supervision for ten
years.
In November 2007, a birthday party was held at the trailer where Scott-
Roth, Katheryn (Katy) Starr, Starr’s daughter Liberty, Starr’s sister Danielle,
Danielle’s daughter, and Danielle’s boyfriend Dusty lived. The record reveals
that Starr and Scott-Roth had separated several days before the party and that
Starr had left the bulk of her belongings at the trailer where Scott-Roth
continued to reside. Starr began collecting her belongings, while Scott-Roth
dismantled Liberty’s crib so that Starr could take it with her. While Starr,
Scott-Roth, and Starr’s mother Debra LaDeen Summer were in the trailer,
“everything just exploded.” Scott-Roth hit Starr in the temple with his fist,
causing her head to hit the wall. Summer tried to break up the fight, but Scott-
Roth grabbed her arm and bore down on it until it broke. Others, including
2 Dusty and a neighbor named Hershall Pollack, intervened to break up the fight,
and the police were called.
The State thereafter filed its first amended motion to revoke community
supervision, alleging that Scott-Roth had violated the terms and conditions of
his community supervision by unlawfully, intentionally, or knowingly causing
serious bodily injury to Debra LaDeen Summer by grabbing and/or bending her
arm in a manner that caused a fracture of her arm; by unlawfully, intentionally,
or knowingly causing bodily injury to Katheryn Nichole Starr by striking her in
the head with his fist; and by drinking beer. After hearing evidence on the
motion to revoke, the trial court found the allegation as to Summer not true, the
allegation as to Starr true, and the allegation as to drinking true. The trial court
entered a judgment revoking Scott-Roth’s community supervision and ordering
him confined for five years on each charge of aggravated assault.
Scott-Roth thereafter filed a motion for new trial and motion in arrest of
judgment arguing that Pollack, a defense witness, was “tampered with” by a
State’s witness and that Scott-Roth’s trial counsel was ineffective (a) for failing
to offer witnesses who would testify that Scott-Roth had abstained from the
use of alcohol and (b) for failing to impeach Pollack with a statement he gave
to a defense investigator.
3 At the hearing on the motion for new trial, Netah Ladyman and Lena
Kinnard testified that they met up with Pollack to have breakfast on the
morning of the revocation hearing. While they were at the restaurant, Pollack
went outside to smoke and spoke with Starr’s sister, Danielle, who was in the
restaurant parking lot. Afterward, Pollack told Ladyman and Kinnard that
“[t]hey’re going to try to say that I perjured myself,” that he had a case pending
against him in Oklahoma, and that he needed to say that Scott-Roth was
drinking and that he (Pollack) did not see anything. Ladyman said that Pollack
talked to Starr’s family at the courthouse before he testified and that after he
testified, he came out and said that he had to testify that he was outside the
trailer and that he did not go in until he heard a thud against the wall. Ladyman
said that this was different than what Pollack had told her before; he had said
that he was in the living room of the trailer when the fight started. Scott-Roth
also took the stand at the hearing on the motion for new trial and explained his
decision not to testify on his own behalf at the revocation hearing; Scott-Roth’s
trial counsel did not testify. After hearing the above testimony, the trial court
denied the motion for new trial, and this appeal followed.
III. R ECORD IS INSUFFICIENT TO E STABLISH INEFFECTIVENESS
In his first point, Scott-Roth argues that the trial court abused its
discretion by denying his motion for new trial because his trial counsel rendered
4 ineffective assistance by failing to impeach a crucial defense witness who
allegedly changed his testimony and by failing to call Scott-Roth to take the
stand.
A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
5 a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-003-CR
JEREMY DON SCOTT-ROTH APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
This is an appeal from the trial court’s denial of a motion for new trial
following a revocation hearing. Appellant Jeremy Don Scott-Roth argues in two
points that the trial court abused its discretion by denying his motion for new
trial because (1) his trial counsel rendered ineffective assistance by failing to
impeach a crucial defense witness who allegedly changed his testimony and by
1 … See Tex. R. App. P. 47.4. failing to call Scott-Roth to take the stand to refute testimony from the State’s
witnesses and (2) a crucial defense witness had allegedly been “tampered
with.” We will affirm.
II. B ACKGROUND
In 2002, Scott-Roth pleaded guilty to aggravated assault - family violence
and aggravated assault - against a public servant. Pursuant to a plea bargain
agreement, the trial court sentenced Scott-Roth to ten years’ imprisonment,
suspended the sentence, and placed him on community supervision for ten
years.
In November 2007, a birthday party was held at the trailer where Scott-
Roth, Katheryn (Katy) Starr, Starr’s daughter Liberty, Starr’s sister Danielle,
Danielle’s daughter, and Danielle’s boyfriend Dusty lived. The record reveals
that Starr and Scott-Roth had separated several days before the party and that
Starr had left the bulk of her belongings at the trailer where Scott-Roth
continued to reside. Starr began collecting her belongings, while Scott-Roth
dismantled Liberty’s crib so that Starr could take it with her. While Starr,
Scott-Roth, and Starr’s mother Debra LaDeen Summer were in the trailer,
“everything just exploded.” Scott-Roth hit Starr in the temple with his fist,
causing her head to hit the wall. Summer tried to break up the fight, but Scott-
Roth grabbed her arm and bore down on it until it broke. Others, including
2 Dusty and a neighbor named Hershall Pollack, intervened to break up the fight,
and the police were called.
The State thereafter filed its first amended motion to revoke community
supervision, alleging that Scott-Roth had violated the terms and conditions of
his community supervision by unlawfully, intentionally, or knowingly causing
serious bodily injury to Debra LaDeen Summer by grabbing and/or bending her
arm in a manner that caused a fracture of her arm; by unlawfully, intentionally,
or knowingly causing bodily injury to Katheryn Nichole Starr by striking her in
the head with his fist; and by drinking beer. After hearing evidence on the
motion to revoke, the trial court found the allegation as to Summer not true, the
allegation as to Starr true, and the allegation as to drinking true. The trial court
entered a judgment revoking Scott-Roth’s community supervision and ordering
him confined for five years on each charge of aggravated assault.
Scott-Roth thereafter filed a motion for new trial and motion in arrest of
judgment arguing that Pollack, a defense witness, was “tampered with” by a
State’s witness and that Scott-Roth’s trial counsel was ineffective (a) for failing
to offer witnesses who would testify that Scott-Roth had abstained from the
use of alcohol and (b) for failing to impeach Pollack with a statement he gave
to a defense investigator.
3 At the hearing on the motion for new trial, Netah Ladyman and Lena
Kinnard testified that they met up with Pollack to have breakfast on the
morning of the revocation hearing. While they were at the restaurant, Pollack
went outside to smoke and spoke with Starr’s sister, Danielle, who was in the
restaurant parking lot. Afterward, Pollack told Ladyman and Kinnard that
“[t]hey’re going to try to say that I perjured myself,” that he had a case pending
against him in Oklahoma, and that he needed to say that Scott-Roth was
drinking and that he (Pollack) did not see anything. Ladyman said that Pollack
talked to Starr’s family at the courthouse before he testified and that after he
testified, he came out and said that he had to testify that he was outside the
trailer and that he did not go in until he heard a thud against the wall. Ladyman
said that this was different than what Pollack had told her before; he had said
that he was in the living room of the trailer when the fight started. Scott-Roth
also took the stand at the hearing on the motion for new trial and explained his
decision not to testify on his own behalf at the revocation hearing; Scott-Roth’s
trial counsel did not testify. After hearing the above testimony, the trial court
denied the motion for new trial, and this appeal followed.
III. R ECORD IS INSUFFICIENT TO E STABLISH INEFFECTIVENESS
In his first point, Scott-Roth argues that the trial court abused its
discretion by denying his motion for new trial because his trial counsel rendered
4 ineffective assistance by failing to impeach a crucial defense witness who
allegedly changed his testimony and by failing to call Scott-Roth to take the
stand.
A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
5 a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
B. Failure to Impeach Defense Witness
Scott-Roth first argues that his trial counsel rendered ineffective
assistance by failing to impeach defense witness Pollack with the statement he
had previously given to a defense investigator.
Here, the record reveals that during the revocation hearing, Pollack
testified that he was standing outside the trailer when he heard the sound of
someone inside hitting the side of the trailer. When he went inside, he
6 observed Summer swinging at Scott-Roth and saw that Scott-Roth was trying
to catch her hands so that she would not hit him. Pollack also testified that he
did not see Scott-Roth drink that day; Pollack had offered Scott-Roth a drink,
but he did not take it.
An investigator for the defense interviewed Pollack and included the
following in his report:
On September 24, 2008 at 11:20 PM, I called Hersh[a]ll Poll[a]ck . . . who agreed to talk with me. Hersh[a]ll Poll[a]ck stated he was at Danielle Wester and Jeremy Roth’s trailer giving a birthday party for Summer, Danielle’s daughter. After the party Katy was telling Jeremy what she was going to be taking.2 At that time, Katy’s mother jumped in telling Jeremy what they were going to be taking. Jeremy told Katy’s mother that he and Katy will decide on what will be taken. That’s when Katy’s mother started swinging at Jeremy and that’s when Jeremy tried to defend himself by grabbing Katy’s mother’s arms to keep Katy’s mother from hitting him (Jeremy). Dusty Owens got them separated and escorted out of the house. Hersh[a]ll had grabbed Katy’s mother from behind in a bear hug and carried her outside. . . .
Scott-Roth contends that his trial counsel should have impeached Pollack
with the above report, arguing that it “is obvious from this [report] that Mr.
Poll[a]ck was inside the house when the events occurred and that there was no
assaultive conduct by Appellant.” The above report, however, does not state
that Pollack was inside the trailer, only that he was “at” the trailer for a
2 … The “taking” mentioned here is in reference to Starr and Scott-Roth’s attempting to divide their belongings.
7 birthday party. The report also does not describe the conduct that transpired
to cause the sound of someone inside hitting the side of the trailer, which
Pollack testified had occurred before he went inside. Rather than contradict his
testimony, the statement that Pollack gave to the defense investigator tracks
the testimony he gave at the revocation hearing regarding what he saw when
he entered the trailer and is consistent with the accounts that the victims,
Summer and Starr, gave regarding Pollack not being in the trailer at the time the
“thud” occurred.3 Moreover, even if Pollack’s statement in the above report
could somehow be construed to conflict with the testimony he gave at the
revocation hearing, we cannot conceive of a sound trial strategy that would
have required Scott-Roth’s trial counsel to attempt to impeach Pollack after he
gave testimony—that Summer, not Pollack, was the aggressor and that Pollack
did not have anything to drink—favorable to Scott-Roth’s defense. Based on
the record before us, in light of the strong presumption of reasonable
professional assistance by defense counsel, and in the absence of any
opportunity for defense counsel to explain his motives for not impeaching
Pollack, we cannot say that Scott-Roth has met his burden of showing by a
3 … The “thud,” according to Starr’s testimony, occurred when Scott-Roth hit her in the temple with his fist, and her head popped back and hit the wall of the trailer.
8 preponderance of the evidence that his trial counsel’s representation fell below
the standard of prevailing professional norms. See Strickland, 466 U.S. at 690,
104 S. Ct. at 2066; Thompson, 9 S.W.3d at 813; Edwards v. State, 280
S.W.3d 441, 445 (Tex. App.—Fort Worth 2009, pet. ref’d); see also
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (stating
that “trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective”).
C. Failure to Call Scott-Roth to Testify
Scott-Roth also argues that his trial counsel rendered ineffective
assistance by failing to call him to testify at the revocation hearing to refute
Starr’s testimony.
At the hearing on the motion for new trial, Scott-Roth testified on direct
as follows:
Q. Did Mr. Trotter call you as a witness to give your version of the events as to what happened at the trailer house?
A. No, he did not.
Q. And if he had, would you have testified that you did not assault Katheryn Starr?
A. That’s correct.
Q. What was Mr. Trotter’s -- Why did Mr. Trotter recommend to you, if you know, as to why you shouldn’t testify?
9 A. At that point it seemed like the -- the case was going pretty well in my favor and thought that me being on the stand would only -- could only produce damning testimony to my case.
On cross-examination, Scott-Roth testified as follows:
Q. Sir, I want you to think about the day that we had the hearing on your revocation. You walked in that door in the courtroom and you were planning to testify that day, weren’t you?
A. I didn’t know at that time if I was going to have to or not.
Q. Okay. But you were prepared to testify?
A. Yes, I was.
Q. And over the course of the hearing, you and your lawyer, Mr. Trotter, on at least one occasion, maybe more, actually took a recess and went back in that jury room and discussed the case, correct?
A. We did take a recess to do that, yes, we did.4
Q. It’s not your testimony today that you weren’t allowed to --
A. No, no.
Q. -- to testify?
A. No.
4 … After the State rested during the revocation hearing, Scott-Roth’s trial counsel asked to take a break to determine “where we go from here now.” After three defense witnesses testified, Scott-Roth’s trial counsel asked for a couple of minutes to discuss with his client what their next step would be (i.e., to rest or to call another witness).
10 Q. You made a decision not to take the stand, yourself, correct? And you advised Mr. Trotter at that time based on his advice you didn’t want to testify?
A. Based on Mr. Trotter’s advice, yes.
Q. But he never told you, you couldn’t testify?
Q. He never told you he wasn’t going to allow you to testify?
Q. In fact, he told you, [i]t’s your option but I advise against it, right?
A. Correct.
Q. So you still could have taken the stand and told the Court everything you just said?
A. I could have, yes.
And on recross-examination, Scott-Roth reaffirmed:
Q. And you could have taken the stand if you wanted to and explained all that [his side of the story] to the Judge at the hearing, and you chose not to, right?
A. If I thought I needed to, yes.
Here, the record from the hearing on the motion for new trial reveals that
Scott-Roth and his trial counsel came to an agreement that Scott-Roth should
not take the stand at the revocation hearing based upon sound trial
strategy—that the trial was going well and that his testimony would be
11 detrimental. Scott-Roth thus has not overcome the strong presumption that his
trial counsel performed within reasonable standards. See Strickland, 466 U.S.
at 690, 104 S. Ct. at 2066; Thompson, 9 S.W.3d at 813; Salas v. State, No.
14-02-00318-CR, 2003 WL 22769731, at *4 (Tex. App.—Houston [14th Dist.]
Nov. 25, 2003, pet. ref’d) (not designated for publication) (holding that trial
court did not abuse its discretion by denying appellant’s motion for new trial
based on alleged violation of his right to testify).
D. Ineffective Assistance Not Shown
Having disposed of both of Scott-Roth’s ineffective assistance arguments,
we overrule Scott-Roth’s first point.
IV. R EVOCATION C AN B E U PHELD O N INDEPENDENT B ASIS
In his second point, Scott-Roth argues that the trial court abused its
discretion by denying his motion for new trial “based on the State’s witness
tampering with a crucial defense witness at the revocation hearing.” We need
not reach the merits of Scott-Roth’s contention because, as pointed out by the
State, Scott-Roth cannot show an abuse of discretion on the part of the trial
court by denying his motion for new trial on his alleged witness tampering claim
in light of an independent basis on which to uphold the revocation. Here,
Scott-Roth does not challenge the trial court’s finding that he drank alcohol in
violation of the conditions of his community supervision. Because this
12 unchallenged independent basis exists on which the trial court could have
upheld Scott-Roth’s revocation, we hold that the trial court did not abuse its
discretion by denying Scott-Roth’s motion for new trial. See Smith v. State,
286 S.W.3d 333, 342–43 (Tex. Crim. App. 2009) (holding that “[e]ven
assuming that the appellant could successfully challenge the failure to report
violation, the trial court was justified in revoking his deferred-adjudication
community supervision” because grounds three and four of the State’s motion
to revoke, if found true, remained sufficient to support the trial court’s decision
to proceed to an adjudication of the appellant’s guilt). We therefore overrule
Scott-Roth’s second point.
V. C ONCLUSION
Having overruled Scott-Roth’s two points, we affirm the trial court’s
judgment.
SUE WALKER JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: September 17, 2009