Shockley, John David v. State

Court of Appeals of Texas·Decided October 16, 2013·No. 05-12-00707-CR·Published

Opinion

AFFIRM; and Opinion Filed October 16, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00707-CR

JOHN DAVID SHOCKLEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-51734-T

MEMORANDUM OPINION Before Justices Moseley, Lang, and Richter 1 Opinion by Justice Richter

A jury convicted John David Shockley of aggravated robbery, and the trial court assessed

punishment, enhanced by prior felony convictions, at thirty-five years in prison and ordered

appellant to pay $264 in court costs. The judgment includes a deadly weapon finding (a

firearm). In two points of error, appellant complains he received ineffective assistance of

counsel and the evidence is insufficient to support the trial court’s assessment of court costs. We

affirm the trial court’s judgment. The background and facts of this case are well-known to the

1 The Honorable Martin E. Richter, Retired Justice, sitting by assignment. parties; so we do not recite them here in detail. We issue this memorandum opinion because the

law to be applied in the case is well settled. TEX. R. APP. P. 47.4.

Ineffective Assistance of Counsel

Appellant contends in his first point of error that he was denied the effective assistance of

counsel. He specifically challenges trial counsel’s decision not to have him testify during the

guilt-innocence phase of trial. Appellant does not deny he committed the robbery. But he claims

he used a toy gun in the commission of the robbery and therefore, the only issue at trial was

whether he used a deadly weapon. He argues that although the victim conceded on cross-

examination that the gun appellant displayed during the robbery might have been a fake, his trial

counsel should have “understood that he needed to present affirmative evidence showing that the

gun used by Appellant was nothing more than a toy.” He contends the decision for him not to

testify deprived him of his only defense and showed that counsel “was not prepared and did not

understand the law applicable to the kind of evidence deemed sufficient to prove that the gun

used by an accused during the commission of an offense constituted a deadly weapon.”

To prevail on an ineffective assistance claim, appellant must prove by a preponderance of

the evidence that (1) counsel’s performance fell below an objective standard of reasonableness

under prevailing professional norms; and (2) a reasonable probability exists that, but for

counsel’s errors, the result would have been different. Strickland v. Washington, 466 U.S. 668,

687–88 (1984); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A defendant’s

failure to satisfy one prong negates the need to consider the other prong. Strickland, 466 U.S. at

697; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). In determining whether

appellant met his burden, we judge counsel’s performance not by isolating one portion of

counsel’s representation, but by considering the totality of the representation and the particular

-2- circumstances of the case. Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009);

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Our review is highly deferential,

and we presume counsel’s conduct fell within the wide range of reasonable professional

assistance and counsel’s actions were motivated by sound trial strategy. Strickland, 466 U.S. at

689–90; Ex parte Lane, 303 S.W.3d at 707.

Ineffective assistance of counsel claims “must ‘be firmly founded in the record,’” with

the record itself affirmatively demonstrating the alleged deficient performance. Bone v. State, 77

S.W.3d 828, 834 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813–14). For that

reason, direct appeal is usually an inadequate vehicle for raising such a claim because the record

is generally undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Appellant argues this case is one of those cases in which trial counsel’s ineffectiveness is

apparent from the face of the record such that the issue can be resolved on direct appeal. He

points to his testimony in the punishment phase of trial during which his trial counsel asked him

questions about their trial strategy and the decision for him not to testify:

Q. Now, with regard to the cases in which you’ve been charged, you have never denied your involvement in those cases; is that right?

A. No, sir.

Q. The only dispute that you have ever had is with the fact that it was a plastic or toy gun that was used; is that right?

A. Yes, sir.

Q. And you have written numerous letters to various people trying to get them to understand that it was a toy or fake gun; is that right?

A. For the past 16 months I have written to the Judge admitting to the exact nature of my wrongs and been willing to take a lie detector to prove that I carried a toy gun in the commission of the robberies.

-3- Q. In fact our plan in trial was for you to take the stand and to say just that; is that right?

Q. But when the State’s case became as weak as it was, then it appeared that even the better strategy was for you not to testify at all; is that correct?

A. That’s correct.

Q. Based on what we perceived to be a very clear situation of the State not having proven that it was a real gun; is that right?

Appellant maintains that without his testimony, the only evidence before the jury on the

weapon used was the victim’s testimony that the weapon looked like a semi-automatic handgun

and that the victim thought it was real. Appellant claims his testimony on the issue was the

“only chance” he had of being found guilty of the lesser included offense of robbery.

The State agrees the record is adequate for this Court to resolve appellant’s ineffective

assistance of counsel claim on direct appeal because appellant’s counsel explained his actions on

the record. The State contends, however, that appellant’s claim should be rejected because he

did not meet his burden to show deficient performance or sufficient prejudice.

We disagree that the record before us adequately reflects counsel’s strategy or reasoning

related to the decision for appellant not to testify at trial. The above exchange reveals that the

“plan” was for appellant to testify and the plan changed when they thought the State’s case had

become weak. But the record is silent regarding counsel’s considerations for why the decision

for appellant not to testify was the “better strategy.” Nor is there anything in the record where

counsel explains the motives behind his actions. Rylander v. State, 101 S.W.3d 107, 110–11

(Tex. Crim. App. 2003). Where the record is silent regarding counsel’s trial strategy or tactics,

we will not speculate as to the basis of counsel’s decision. Id. at 111. A basic corollary from the

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