Olivia Rena Ford v. State

Opinion issued October 13, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00981-CR

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OLIVIA RENA FORD , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 208th Judicial District Court

Harris County, Texas

Trial Court Case No. 1221810

MEMORANDUM OPINION

Appellant,

Olivia Rena Ford, without an agreed punishment recommendation from the State,

but with an agreed punishment cap of confinement for thirty-five years, pleaded

guilty to the offense of aggravated kidnapping, [1] and the trial court

assessed her punishment at confinement for thirty-five years. In her sole issue, appellant contends that her

trial counsel provided her with ineffective assistance of counsel at the

punishment phase of her trial.

We

affirm.

Background

A Harris County grand jury issued a true bill

of indictment, accusing appellant of committing the offense of aggravated

kidnapping by unlawfully and knowingly abducting the complainant, Alex

Mitchell, Jr., with the intent to facilitate flight after robbery. Appellant and her trial counsel signed her

plea of guilty and accompanying admonishments, with an agreed punishment cap of

confinement for thirty-five years, and the trial court reset the matter for a

pre-sentence investigation (“PSI”) hearing.

The PSI report indicated that appellant,

a high school student at the time of the offense, was already acquainted with

the complainant. Appellant had arranged

for the complainant to meet with her friend, Deaundre Randall, for the purpose

of robbing the complainant. Appellant had

the complainant pick up Randall in his car, and the complainant drove appellant

and Randall to a vacant house under the pretense of helping Randall move items

out of the house. Appellant stayed in

the complainant’s car while Randall and the complainant entered the house,

where Randall and several others robbed and severely beat the complainant. They then forced the complainant to exit the

house and crawl into the trunk of his car.

Randall dropped appellant off at her cousin’s house and later burned the

car with the complainant still in the trunk, in which he died. Telephone records demonstrated that after

being dropped off, appellant was in “almost constant contact” with Randall

through the complainant’s cellular telephone and Randall’s home telephone.

At

the PSI hearing, Lisa Andrews, a former Harris County assistant district

attorney, testified that she interviewed appellant at her school as a “person

of interest” in the murder of the complainant.

During the interview, appellant admitted that she knew that Randall had

planned to rob the complainant. Appellant

appeared “very hostile” to Andrews and “unsympathetic” regarding the death of

the complainant. At one point, appellant

stated that the complainant “should have known it was all a setup.” Andrews also stated that appellant continued

to communicate with Randall after his incarceration through mail and she did

not “express any fear” towards Randall.

On cross-examination, appellant’s trial counsel challenged the

voluntariness of the interview, suggested that appellant was “intimidated” by

the investigators, and asserted that appellant’s immaturity at the time of the

offense may have contributed to her demeanor.

Trial counsel also asserted that Randall had manipulated appellant into

“luring” the complainant to the vacant house and she was too frightened to

object to the plans. In closing

argument, trial counsel stated that appellant felt “regret” for her actions and

“accept[ed] responsibility” for her role in the complainant’s death. After an apologetic statement by appellant,

the trial court assessed her punishment at confinement for thirty-five years.

Standard of Review

The standard of review for

evaluating claims of ineffective

assistance of counsel is set forth in Strickland

v. Washington , 466 U.S. 668,

687 , 104 S. Ct. 2052, 2064 (1984). Strickland

generally requires a two-step analysis in which an appellant must show that (1)

counsel’s performance fell below an objective standard of reasonableness, and

(2) but for counsel’s unprofessional error, there is a reasonable probability

that the result of the proceedings would have been different. Id. at 687–94, 104 S. Ct. at 2064–68; Thompson

v. State , 9 S.W.3d 808, 812

(Tex. Crim. App. 1999). A reasonable

probability is a “probability sufficient to undermine confidence in the

outcome.” Strickland , 466 U.S. at 694 , 104 S. Ct. at

2068 . In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that his performance

falls within the wide range of reasonable professional assistance or trial

strategy. Robertson v. State , 187 S.W.3d 475 , 482–83 (Tex. Crim. App.

2006); Thompson , 9

S.W.3d at 813 .

A failure

to make a showing under either prong defeats an ineffective-assistance claim. Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App.

2003). Moreover, allegations of ineffectiveness must be firmly founded in the

record. Thompson , 9 S.W.3d at 814 ; Bone v. State , 77 S.W.3d 828 , 833 & n.13 (Tex. Crim. App. 2002). In the absence of evidence of counsel’s

reasons for the challenged conduct, an appellate court commonly will assume a

strategic motivation if any can possibly be imagined and will not conclude that

the challenged conduct constituted deficient performance unless the conduct was

so outrageous that no competent attorney would have engaged in it. Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

Ineffective Assistance of Counsel

In her

sole issue, appellant argues that her trial counsel rendered ineffective

assistance of counsel at the punishment phase of trial because counsel “presented

only limited mitigation evidence” during the PSI hearing. Appellant asserts that trial counsel did not

offer “a single scrap of mitigation evidence” during the hearing, he should

have introduced testimony from “an expert, family member or the [a]ppellant

herself,” and such evidence “would have at least given the [c]ourt reason” to

impose a sentence less than the maximum stated in the plea agreement.

Here,

appellant did not file a motion for new trial, and there is nothing in the

record to indicate why trial counsel did not call any witnesses at the PSI

hearing. Although appellant asserts that trial counsel

could have called an expert or a family member to testify on her behalf, there

is no showing in the record that such witnesses were available or willing to

testify. Moreover, there is nothing in

the record demonstrating that appellant would have benefitted from their

testimony or her own testimony, which would have been subject to

cross-examination. Furthermore, there

is no showing in the record that trial counsel failed to adequately investigate

potential witnesses to testify at the PSI hearing. As a result, we cannot conclude that trial

counsel’s not procuring such witness testimony constituted a performance that

fell below an objective standard of reasonableness. See,

e.g. , Ex parte White , 160 S.W.3d

46, 52 (Tex. Crim. App. 2004) (“To obtain relief on an ineffective assistance

of counsel claim based on an uncalled witness, the applicant must show that

[the witness] had been available to testify and that his testimony would have

been of some benefit to the defense.”) (citing King v. State , 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)).

Appellant’s counsel on appeal acknowledges

that there is no evidentiary record, but he asserts that “there can be no

explanation” for trial counsel’s alleged failure to put on mitigation

evidence. However, the decision to

present witnesses is largely a matter of trial strategy. Shanklin

v. State , 190 S.W.3d 154, 164 (Tex. App. — Houston [1st Dist.] 2005, pet. dism’d) (citing Rodd v. State , 886 S.W.2d 381, 384 (Tex. App. — Houston [1st Dist.] 1994, pet. ref’d)). “[A]n attorney’s decision not to present

particular witnesses at the punishment stage may be a strategically sound

decision if the attorney bases it on a determination that the testimony of the

witnesses may be harmful, rather than helpful, to the defendant.” Id.

In the absence of evidence in the record of trial counsel’s reasoning,

we cannot presume that his not presenting any witnesses “was so outrageous that

no competent attorney would have” done the same. See

Garcia , 57 S.W.3d at 440 .

Although

trial counsel did not call any witnesses, he did attempt to present mitigation

evidence in cross-examination, and he argued for leniency in his closing

argument. At the PSI hearing, the State

primarily argued that appellant’s demeanor in her interview with Andrews and in

court demonstrated a lack of remorse. On

cross-examination of Andrews, trial counsel attempted to elicit that the

setting of the interview, the parties conducting the interview, and the

immaturity of appellant may have contributed to her demeanor rather than a lack

of remorse. Trial counsel also elicited

that appellant was very young at the time of the offense and was significantly

influenced by Randall. Finally, in his

closing argument, trial counsel argued that appellant had expressed remorse for

her behavior and referenced appellant’s statement included in the PSI report.

In

sum, appellant has not demonstrated that her trial counsel’s performance fell

below an objective standard of reasonableness.

Accordingly, we hold that appellant has not satisfied Strickland ’s first prong.

We

overrule appellant’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code ann. § 20.04(a)

(Vernon 2011).