 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Orchard v. State9/6/2001
0th. Ms. Grimes stated that she did not know what appellant had been doing between 10:00 pm and 2:20 am.
Appellant fails to meet the test to prove ineffective assistance of counsel. First, he has not shown by a preponderance of the evidence that failing to call these witnesses was not objectively reasonable trial strategy. Appellant's trial counsel did not speak with the witnesses before trial and stated that he typically does not call witnesses whom he has not interviewed prior to trial.
Assuming, without deciding, that appellant's trial counsel's representation was unreasonable in this regard, appellant cannot show that, but for these errors, the result of the proceeding would have been different. Ms. Dyke's testimony directly contradicted appellant's testimony. And, Ms. Grimes could not account for what appellant was doing between 10:00 pm, when she last saw him, until 2:20 am, when appellant was arrested.
An attorney's strategic decision not to call a witness will be reversed only if there is no plausible basis for failing to call the witness to the stand. Valasquez v. State, 941 S.W.2d 303, 310 (Tex. App.--Corpus Christi 1997, pet. ref'd). Further, the failure to call a witness may support an ineffective assistance of counsel claim only if it is shown that the witness was available and the defendant would have benefitted from the testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).
B. Failure to strike a potential juror whose husband was killed by a drunk driver
Appellant next complains of his trial counsel's failure to strike veniremember Gruetzmacher who stated that her husband had been killed over 18 years ago by a drunk driver. Gruetzmacher, acknowledging that this had happened long ago, stated that she "do not feel like it would sway one way or another." Additionally, Gruetzmacher did not raise her hand when asked if anyone on the panel would hold appellant's prior DWI convictions against him, or when asked if anyone on the panel could not be fair and impartial as a juror in this type of case.
During the hearing on the motion for new trial, when asked whether he would strike a juror whose husband had been killed by a drunk driver, appellant's trial counsel replied that he would. In fact, he stated that such a juror would be one of the first he would strike. However, when appellant's trial counsel was asked this question, he stated that he did not remember this juror's statements. Appellant's motion for new trial attorney failed to inform appellant's trial counsel, when asking this question, that the death occurred between 18 and 19 years ago, that she stated that she could be a fair juror, and that her other answers indicated she would be beneficial to the defense.
After reviewing this evidence, we find that appellant failed to prove by a preponderance of the evidence that his trial counsel's efforts on his behalf fell below the objectively reasonable norm of acceptable professional assistance.
C. Failure to object to prosecutor's statements during voir dire about intoxication
Appellant complains that the prosecutor misstated the law during voir dire by telling the jury that the standard to determine intoxication is,
. . . can he operate his motor vehicle like a normal non-intoxicated person? Does he have the use of his physical or mental faculties like a normal non-intoxicated person? That's the standard we're looking at. Does anybody have a problem with that definition or that standard?
I mean, if there's some kind of handicap or something like that, I would assume that we hear about it, but barring that, barring knowing about any handicap
Page 1 2 3 4 5 6 7 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|