Opinion
No. 05-01-01392-CR.
Opinion Filed January 10, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-00-53238-LP. AFFIRM.
Before Justices WRIGHT, BRIDGES, and O'NEILL.
OPINION
Appellant appeals his conviction for injury to a child. After finding appellant guilty, the jury assessed punishment at life confinement and a $10,000 fine. In a single point of error, appellant contends he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for capital murder. At trial, the State presented evidence that appellant killed his two-and-a-half-year-old son by slamming the child's head against a tile floor. The State's medical evidence showed the child died from multiple blunt force injuries and possible shaking. Further, the child's six-year-old brother, J.G., testified that he witnessed appellant kill his brother. J.G. testified appellant was mad at the victim and "he hit him in the floor and then he hit him . . . and hit him and hit him and hit him and hit him. . . ." When appellant was questioned by police, he initially claimed the child had fallen. He later gave police the following statement: I walked into my apartment to dress my son Christopher at about 5:00 p.m. on Sat. Sept.2d 2000. I saw Christopher on a [four] wheel buggie. When I removed him he started to cry and was aggressive. I tried to make him stop. He wouldn't stop. Then with my hand I covered his mouth and I slammed his head back onto the floor. I noticed right away he wasn't moving. His eyes got sleepy and I knew something was wrong. From there I panicked and I picked him up and ran outside with him. I told my wife he fell. She didn't believe me. I told her I slammed him back. She reacted with violence. I'm going through a difficult time[,] no money, no food, no money for rent[,] pressure at home, and work. Appellant testified at trial and admitted he was responsible for his child's death, but claimed he did not knowingly or intentionally cause it. Appellant explained that on the day of the offense, the child was unusually fussy while he was trying to change his diaper. Appellant "pushed" him back, and the child's head hit the tile floor. The child was rendered immediately unconscious and appellant took him to the hospital. Appellant denied that he "slammed" the child's head against the floor. Rather, it was a "slap," with a "push." Appellant claimed he used the word "slammed" in his statement to police because the police officer told him to. Appellant also admitted that he initially lied to his wife, to the doctors, and to police about how his child was injured. On cross-examination, appellant indicated he could not remember how much force he used when he pushed the child's head back, but he acknowledged he busted the child's lip. Appellant claimed he did not know the child would get hurt from smashing his head against a tile floor "because it happened so quickly." However, appellant acknowledged a child could be killed if his head were hit against a tile floor. The jury acquitted appellant of murder, but found him guilty of the lesser included offense of injury to a child. Appellant filed a motion for new trial based upon ineffective assistance of counsel. At a hearing on the motion for new trial, trial counsel testified that she did not adequately represent appellant because she was unprepared for the State's medical evidence that the child suffered from multiple impact wounds. Counsel believed she had adequately investigated prior to trial, but at trial, she realized she should have explored the State's medical evidence further. Her strategy at trial was "damage control" because appellant essentially admitted causing the child's death by slapping the child's head onto the floor. The trial court denied the motion for new trial. In his sole point of error, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The defendant must prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-814. In such cases, we need not speculate as to the basis for trial counsel's decisions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant's first complaint concerns trial counsel's failure to adequately prepare for the State's medical evidence and failure to present a defense expert to offer medical evidence that was consistent with appellant's version of the offense. Appellant maintains the record supports this claim because trial counsel admitted at the motion for new trial hearing that she was ineffective for failing to adequately prepare for some of the State's medial evidence. According to appellant, there is a reasonable probability the result of the proceeding would have been different had counsel been prepared, because the jury may have found appellant guilty of only reckless conduct if counsel more effectively cross-examined the State's experts and had presented medical evidence supporting his version of the offense. After reviewing the record, including the evidence offered at the motion for new trial hearing, we conclude appellant has failed to meet the second prong of Strickland. There is nothing in the record to suggest counsel could have more effectively represented appellant had she been more prepared for the State's evidence. Nor is there any evidence that any medical expert could have supported appellant's theory of the case. See Wilkerson v. State, 726 S.W.2d 542, 550 (Tex.Crim.App. 1986) (noting trial counsel's failure to call witnesses is irrelevant absent a showing such witnesses were available and their testimony would benefit defendant). Moreover, the jury found appellant guilty of the lesser included offense of injury to a child. Appellant admitted in his voluntary statement that he "slammed" the child's head on the tile floor because the child was crying and acting "aggressive." At trial, appellant testified and admitted "slapping" the child so hard it caused the child's head to hit the tile floor with sufficient force that the child was rendered immediately unconscious. While appellant claimed he did not know his actions could kill the child, appellant was found guilty only of the lesser included offense of injury to a child. We cannot agree with appellant's assertion a reasonable probability exists the jury would have convicted him of only reckless or criminally negligent conduct had counsel been more prepared. Appellant makes numerous other complaints regarding ineffective assistance of counsel. He complains counsel (1) conducted a brief voir dire, (2) failed to interview the child's mother and brother, (3) failed to "thoroughly" or "meaningfully" cross-examine most of the State's witnesses, (4) failed to object to the competency of the victim's brother, (5) opened the door to damaging testimony by presenting favorable testimony, and (6) failed to object to the State's leading of two witnesses in the punishment phase. Appellant did not develop a record with respect to these complaints at the hearing on his motion for new trial. Thus, the record is silent with respect to counsel's reasons for the complained-of actions. In light of a silent record, we will not speculate as to whether trial counsel's decisions were the result of sound trial strategy. See Jackson, 877 S.W.2d at 772. Further, appellant has not shown a reasonable probability exists the result of the proceeding would have been different but for the complained-of actions. We overrule appellant's sole point of error and affirm the trial court's judgment.
J.G. and the victim shared the same mother, but appellant was not J.G.'s father.