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Orchard v. State9/6/2001
v. State. 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To meet this standard, appellant must show that his counsel's representation fell below an objective standard of reasonableness, and but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 55.
Appellant carries the burden to prove, by a preponderance of the evidence, the ineffectiveness of his trial counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Counsel's conduct is strongly presumed to fall within the wide range of reasonable professional assistance, and appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 688-89; Thompson, 9 S.W.3d at 813. To overcome this presumption, a claim for ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. Thompson, 9 S.W.3d at 813-14. The record is best developed by a collateral attack, such as an application for a writ of habeas corpus or a motion for new trial. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Appellant filed a motion for new trial and the court conducted a hearing thereon, thus, appellant did make a record as to some of his claims of ineffective assistance of counsel. We will address those claims first.
A. Failure to Subpoena Witnesses
Appellant first contends that his trial counsel was ineffective because he failed to contact or subpoena Patricia Dyke and Meri Grimes. In the motion for new trial hearing, appellant, his trial counsel, Ms. Dyke, and Ms. Grimes all testified. Appellant first called his trial counsel, who testified that appellant provided him with a list of potential witnesses including Ms. Dyke and Ms. Grimes. Appellant's trial counsel claims he asked appellant to get in touch with these witnesses and that before trial appellant told him that the only witness on the list that he could get in touch with was Ronnie Foley, who was present to testify. Appellant's trial counsel testified that appellant told him one of those two women had moved away and that he could not get in touch with the other one. Appellant's trial counsel, who has practiced criminal law for several years, explained that he likes to interview witnesses before he obtains subpoenas on them for trial. He added that appellant never told him that he needed to issue subpoenas in order to bring these witnesses to the trial.
At the motion for new trial hearing, Ms. Dyke stated she had known appellant for 30 years, and informed the court that appellant's sister is married to Ms. Dyke's brother. Ms. Grimes testified that she had known appellant for 5 or 6 years. Appellant acknowledged that his trial counsel told him to contact these witnesses, and stated that he told his trial counsel that the only witness he knew would come was Ronnie Foley. However, he claimed that he told his trial counsel that he probably would have to subpoena Ms. Dyke and Ms. Grimes.
Ms. Dyke testified that appellant never contacted her, and she also testified that she would have told the jury she was on the phone with appellant when he was pulled over. This is in direct contradiction to appellant's testimony that he was speaking to his wife on the phone at the time he was pulled over.
Ms. Grimes testified that appellant did contact her. However, as to her testimony, Ms. Grimes testified that she saw appellant leave "Kicks" at 10:00 pm on November 29th. She stayed at "Kicks" until closing time at 2:00 am, and never saw appellant return. It is undisputed that appellant was arrested at 2:20 am on November 3
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