William Charles "Billy" Bishop v. State

• Court: Court of Appeals of Texas
• Decided: June 7, 2006
• Docket: 10-04-00324-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00324-CR

William Charles "Billy" Bishop,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 278th District Court

Leon County, Texas

Trial Court No. CM-03-186A

MEMORANDUM  Opinion

      Bishop appeals his conviction for aggravated sexual assault of a child.  See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2005).  We affirm.

      In two issues, Bishop contends that he did not receive the effective assistance of counsel.  See U.S. Const. amend. VI; Rompilla v. Beard, 545 U.S. 374, ___, 125 S. Ct. 2456, 2462 (2005); Strickland v. Washington, 466 U.S. 668 (1984).  “Ineffective assistance under Strickland [v. Washington] is deficient performance by counsel resulting in prejudice, with performance being measured against an ‘objective standard of reasonableness,’ ‘under prevailing professional norms.’”  Rompilla, 125 S. Ct. at 2464 (quoting Strickland at 687, 688).  “[T]o establish prejudice, a ‘defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland at 694); see Rompilla, 125 S. Ct. at 2467.  “[C]ounsel is ‘strongly presumed’ to make decisions in the exercise of professional judgment.”  Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland at 690).

When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.  That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court “may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.”

Gentry at 5-6 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)) (internal citation omitted) (argument).  “A Strickland claim must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of the claim.”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)); accord Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  “In the absence of anything in the record affirmatively demonstrating otherwise, we presume that . . . counsel made a reasonable and strategic decision . . . .”  Salinas at 740.

Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.  This is true with regard to the question of deficient performance—in which counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight—where counsel’s reasons for failing to do something do not appear in the record.

Goodspeed at 392 (internal footnotes omitted); Thompson at 814.  “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.”  Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)); accord Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  “Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’”  Goodspeed at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

      In Bishop’s first issue, he contends that he did not receive the effective assistance of counsel at trial.  Bishop argues that: (1) counsel did not request notice of the State’s intent to offer evidence of Bishop’s extraneous offenses; see Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g); Tex. R. Evid. 404(b); (2) counsel did not sufficiently examine the jury panel on voir dire; (3) counsel elected that the trial court assess Bishop’s punishment, see Tex. Code Crim. Proc. Ann. art. 27.02(7) (Vernon 1989); (4) counsel did not object to evidence of hearsay statements by the victim, see Tex. R. Evid. 801(d), 802; (5) counsel did not object to outcry evidence, see Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2005); (6) counsel did not object to other hearsay evidence; (7) counsel elicited hearsay evidence and evidence of Bishop’s extraneous offenses; and (8) counsel did not object to evidence of Bishop’s extraneous offenses.  Except with regard to the punishment election, the reason for counsel’s action or inaction does not appear in the record.  With regard to extraneous-offense notice, for example, the record does not even show that counsel did not request notice.  We address the punishment election below.

      In Bishop’s second issue, he contends that the trial court erred in overruling Bishop’s motion for new trial.  See Tex. R. App. P. 21.[1]  “An appellate court reviews a trial court’s denial of a motion for new trial under the ‘abuse of discretion’ standard.”  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); see Harrison v. State, 187 S.W.3d 429 (Tex. Crim. App. 2005).  “We must view all the evidence in the light most favorable to the trial court’s ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party.”  Charles at 208.  “We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or unreasonable.”  Id. 

      As to the punishment election, trial counsel testified at the hearing on the motion for new trial.  Counsel testified that when he advised Bishop to elect that the trial court assess Bishop’s penalty, counsel had mistakenly believed that the court could impose community supervision for Bishop’s offense.  See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3(a), 3g(a)(1)(E) (Vernon Supp. 2005).  The trial court plainly disbelieved that testimony.  The trial judge stated that he believed that counsel’s trial strategy in electing that the court assess Bishop’s punishment was to avoid the jury’s assessing a severe punishment if the jury disbelieved Bishop’s claim of innocence.

      Bishop does not establish that he did not receive the effective assistance of counsel at trial.  The trial court did not abuse its discretion in overruling Bishop’s motion for new trial.  We overrule Bishop’s issues.

      Having overruled Bishop’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance dissenting with note)*

Affirmed

Opinion delivered and filed June 7, 2006

Do not publish

[CRPM]

  *  “(Justice Vance dissenting with a note)

      “(We decided in Jaubert v. State that there was no strategic basis for defense counsel’s not requesting notice under article 37.07, section 3(g) and that the failure to request was unreasonable and not justified by "trial strategy."  Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex. App.—Waco 2000), rev’d on other grounds, 74 S.W.3d 1 (Tex. Crim. App. 2002).  Bishop cites Jaubert, but the State and the majority ignore it.  Furthermore, trial counsel testified at the hearing on the motion for new trial that he thought Bishop was eligible for probation and was not aware when he waived a jury that section 3G of article 42.12 prohibited the court from granting probation.  He said that he “does some criminal law, but not much,” that he made a “stupid, dumb, ignorant move,” and that he felt that Bishop was denied effective assistance of counsel.  Based both on Jaubert and the other complained-of actions, I would reverse the judgment because of ineffective assistance of counsel at trial.)”

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[1]  Although Bishop stated other grounds in his motion for new trial and at the hearing on the motion, the only ground that he pursues on appeal is ineffective assistance of counsel premised on the punishment election.

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