### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 734 -CR

Cl intDe m e tr i Jo ne s , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF B ELL COUNTY , 264TH JUDICIAL DISTRICT NO. 6162 1 , HO NORAB LE MARTH A J. TRUDO , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
Clint Demetri J ones plead edgu i l t y t o b u rgl ary

o f a h ab i t at i o nwi t h o u ta r ec o m mended punishment and was sente nced to twe lve y ear s in prison. Appellant contends that his counse l was ine ff e c tiv e fo r f

a ili ngto c on ta c t, i nte rv ie w, and c a ll a s w itn e sse s a

pp e lla nt’ s f a mil y . We a ff

ir m. To s u c c e e d

o nani n e f

f e c t i v e - a s s i s t an c e c l a i m , a d e f e n d an tm u s ts h o w t h a t: (1) c ounsel’s per formanc e was defic ient, and (2) the defic ient perf ormanc e pre

judiced the de fense
. Strickland v. W

ashington , 466 U.S. 668, 687 (1984). To show defic ient perf ormanc e, the de fenda

nt must prove by a preponde ranc e of the evidenc e that his c ounsel’s repr esentation f ell b el o w t he standard of

profe ssional norms. Id . at 687-88. The defe ndant bears t he burden to prove inef fec tive assistance of counse l. Id . at 68 7. To de mon str a te pr e jud ic e , the de fe nd ant mus t sh ow a re a so na ble probability

that, but for counse l’s unprofe ssional error s, the result of t h e p roce eding would have be en differ ent. Id . at 694. Ap p el l ate r eview of trial counsel’ s repr esentation is hi g hly defe rential a

nd2

presumes that c ounsel’s actions fell within the wide rang e of rea sonable and profe ssional assistance. Id
. a t 68 9; Bo ne v . S

tat e , 77 S.W.3 d 828 , 8 33 (T e x. Cr im. Ap p. 20 02 ). I f c ouns e l’ s r e a so ns fo r h is conduct do not appe ar in the r ecor d, but the conduct c ould have be en g round ed in leg itimate trial strateg y , we will def

er to c ounsel’s dec isions and de ny relief on an inef

fec tive assistance claim on d i re ct appeal. Or tiz

v . S tat e , 9 3 S
. W
. 3 d 7 9 , 8 8

- 8 9 ( T e x. C r i m . A p p . 2 0 0 2 )
. T h e f a i lur e to c a ll witnesses does not show i n e f f e c tive assistance when the de fenda nt fails to show there w ere witnesses not called who w ould have testified he lpf u l l y o n h is behalf. Kin g v . S tat e , 649 S.W .2d 42, 44 (Tex. Crim. App. 1983).

Courts have found a ssistance of c ounsel ineff ective w hen the attorney s’ m issteps are
sever e enoug h to p re

j u d i ce t h ei r clients. F or example, an attorney who fa ils to obj ect whe n the prosec utor misstates the law in a way detrimental to his client has been c onsidered to be ineffe ctive. An dr e ws v . S

tat e , 159 S.W .3d 98, 103 (Tex. Crim. App. 2005). Althoug h choosing which witnesses to c a ll i s a str a te g ic de c isi on , the fa ilure to inv e sti g a te , int e rv ie w, or c a ll h e lpf ul w itn e sse s w ho c ou ld illum i n at e var ious mit igating f actor s—when c ounsel is awar e of the ir exist ence and views—w as deeme d ineffe ctive. Sh an k lin v . S tat e , 190 S.W .3d 154, 165 (Tex. App.—Houston [1s t Dist.] 2005), pet. dism’d, improvide ntly granted , 211 S.W .3d 315 (Tex. Crim. App. 2007).

Ap pe lla nt c omp la ins that hi s tr ia l cou ns e l f a ile d to c on ta c t, i nte rv ie w, and c a ll h is family as witnesses at the punishment phase. At the he aringon his moti on for ne w trial, appe llant called his mother, Mic helle Jones, as a wit ness. She testified t hat, upon appellant’s arr est, she and he r h us ba nd de c ide d n ot to pos t bai l or hir e an atto rn e y fo r h im, le tti nga

pp e lla nt t a ke re sp on sib ili ty for his ac tions. S he had no c ontact with the appointed attorney , Dar rell Guess. She eve ntually tried to contact Gue ss on two occa sions through a series of telephone calls and messag es. The f irst time,3

she did so at appe llant’s reque st after Guess fa iled to show for the ple a hea ring . She was told that Guess had a

death in his family . She admitted kn o wi n g t h at appellant had failed to a ppear for a sentenc ing he aringafte r beingrele ased on bond at a time w hen he was living mostly with he r. She left other me ssag es for Guess reg arding the case. Howeve r, he never r eturne d any of her calls, nor did he contac t any

other fa mily members ( or others) who would have testified. He did not inform her of the date of

appellant’ s rese t sentencinghear ing. H oweve r, neither did appellant. She wa

nted to t e s ti f y to e n c o u r a g e th e tr ia l c o u rt to r e qu ir e d r u g o r a lc o h o l c o u n s e li n g . A lt h o u g h she had no phy sical evide nce of drug abuse, she said that appe llant’s behavior afte r re turning from a nig ht out persua ded her

that he wa s using drug s or alcohol. Upon lear ning that appellant had bee n sentenc ed to t we lve y e ars in p ri so n, sh e wa s d istra ug ht. Appellant did not show his counsel’s re prese ntation to be defic ient. Appellant wa s 20 y e ars old

a t th e tim e of

the of fe ns e and the pr oc e e din g s at i ssu e in t his c a se . App e lla

nt’ s p a re nts ha d n ot part ic ipate d in his d e fe ns e . T he y ha d n o r e la tio ns hip wi th a pp oin te d c ouns e l. A

pp e lla nt d id not demonstrate that his counsel had any rea son to believe that his family members would pr ovide he lpf ul tes ti mo ny . T he on ly

te sti mony

a pp e lla nt’ s mo the r s ta te d s he wo uld have pr ov ide d is a
re qu e st f or dr ugor a lc oh ol c ouns e lin g . T hat reque st o r t e sti mony wo uld have be e n o f u

nc e rt a in value g iven the lac k of allegation or proof that the offense was committed due to appellant’s drug
or a lc oh ol p ro ble m. A lth ou g h h is m oth e r t e sti fi e d th a t f a mil y fr iends wou ld hav e te sti fi e d at hi s punishment hearing , we c annot assess whether their t estimony would have been helpful beca use the
rec ord is silent as to what they would have sa id. The re cord is also silent as to why appellant’ s counsel c hose not to call appellant’ s family as witnesses. Counsel aske d for de fer red a djudication probation, but the State argued that appellant wa s not a g ood candidate for pr obation g iven his failureThe prose cutor stated, ba sed on the pre -sentenc e investig ation: 1 “[H]e denies eve n having any proper ty on his person when he hit the pol e and knoc ked himself out and the police wer e able to appre hend him and he did, h e d id in fact have a g old chain with an Eg y ptian inscription on it on his person that c ame f rom that very

house.” 4 to appea r for a sente ncing hear ing ( an d fa ilure to advise the c ourt that he c ould not attend), d e n i a l o f t h e c o m m i s s i o no f

t h e o f f e n s e , an d g e n e r a l d i s h o n e s t y. Al tho ug h r e tur nin g c a lls fr om a 1 20-y ear -old defe ndant’s mother mig ht b e t h e b etter pr actice , we c annot say on this recor d that counsel’s pe rfor

mance was deficient because he did not return the c alls of his adult client’s mother. Ap pe lla nt fa ile d to de mon str a te that th e a lle g e d d e fi c ie nc ie s in his
c ouns e l’ s p e rf

or manc e pr e

jud ic e d h is d e fe ns e. Th e c ourt se nte nc e d h im t o tw e lve y e a rs in prison, which is slightly above the middle of t he sentencing rang e for a sec ond-deg ree felony
. See Tex. P enal Code A nn. § 12.33 (West 2003) (ra ng e of two to twe nty

y ear s). He ha s not shown that pleas for drug and alcohol counseling would have suc cee ded in the abse nce of proof that he neede d
su c h c ouns e lin g . H e ha s n ot s ho wn wh a t any

oth e r w itn e sse s w ou ld h a ve te sti fi e d, muc h le ss how their testimony

woul d have le ssened his punishment. He ha s not shown that counsel’s pe rf or manc e ha rm e d h im. Affir med.

G. Alan Waldrop, Just ice Be fore Chief J ustice L aw, Justi ces Pembe rton and Waldrop Affir med Filed: August 14, 2008 Do No t Pu

bli sh