       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00303-CR



                              Tom Elton Robertson II., Appellant

                                                 v.

                                  The State of Texas, Appellee


   FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
      NO. A-05-0524-S, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Tom Elton Robertson II of sexual assault of a child and

assessed punishment at twenty years in prison. See Tex. Penal Code Ann. § 22.011(a)(2)

(West Supp. 2006). On appeal, appellant contends that he was denied effective assistance of

counsel. We affirm.

                Appellant, appellant’s father, Tom Elton Robertson Sr., and appellant’s brother, Sam

Robertson, were separately indicted for sexual assault of the same child, J.J. According to J.J., she

had been sexually assaulted by all three men at various and separate times beginning when she was

fourteen years old. These alleged sexual assaults occurred while J.J.’s mother was dating Robertson

Sr. When she was fifteen years old, J.J. became pregnant. DNA analysis showed that appellant is

the father of J.J.’s baby.

                Before bringing appellant to trial, the State moved to join Robertson Sr. and Sam

Robertson as codefendants in appellant’s case. The motion for joinder alleged that “the indictments
charge the same offenses and occur as part of the same criminal episode in that they are perpetrated

against the same victim over the same period of time (albeit not at the same time) . . . the witnesses

will be the same in each case and the evidence offered by the State will be the same in each case.”

On November 9, 2005, the trial court held a pretrial hearing on the State’s motion for joinder. At

the hearing, the three attorneys representing the three defendants argued that they needed more time

to discuss the possibility of a joint trial with each other and with their clients. The following

exchange occurred between the trial judge and appellant’s attorney, Galen Moeller:


        The Court:              Bottom-line, are you objecting to the joint trial, or do you
                                know yet?

        Mr. Moeller:            I really don’t know yet. I met with my client yesterday
                                evening for about an hour going over many of the things. I
                                discussed it with Kirk [the attorney for Robertson Sr.]. I can
                                see advantages and disadvantages. We are weighing those,
                                Your Honor. I am really not able to state to the Court with
                                any degree of certainty that this is what I would like to do.


At the end of the hearing, the judge overruled the State’s motion for joinder, stating, “[m]y

inclination is not to join [the cases] at this time. . . . the only way I am going to agree to join them

is if everybody agrees to join.”

                At some point after the pretrial hearing, Moeller and Kirk Hawkins, attorney for

Robertson Sr., agreed to a joint trial.1 Sam Robertson was not joined as a codefendant. During the


        1
          At trial, the judge confirmed with the codefendants’ attorneys that the joinder of the case
against appellant with the case against Robertson Sr. was by agreement:

        The Court:              And just for purposes of the record, you-all have consented to
                                having these cases tried together; is that correct, Mr.
                                Hawkins?


                                                   2
joint trial, the State presented eleven witnesses, including J.J., and numerous exhibits, including

photographs, recorded phone calls, and blood samples. Neither appellant nor Robertson Sr. testified.

After the close of the evidence, the jury returned a guilty verdict for both defendants and sentenced

them both to twenty years in prison.

               Appellant asserts that he was denied effective assistance of counsel at the pretrial

hearing on the State’s motion for joinder, during the guilt-innocence phase of the trial, and in the

punishment phase of the trial based on “counsel’s failure to object to joinder and request a separate

trial” during each of these phases of the proceedings. The right to counsel guaranteed by the Sixth

Amendment is the right to the effective assistance of counsel.           Strickland v. Washington,

466 U.S. 668, 686 (1984). The proper standard for attorney performance is that of reasonably

effective assistance. Id. at 687. Appellant’s claim that his counsel’s assistance was so defective as

to require reversal of his conviction requires a showing that (1) counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms and (2) this deficient

performance prejudiced the defense by more likely than not altering the outcome of the case. Id. at

687-94; Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the standard set

forth in Strickland for ineffective assistance claims under the Texas Constitution). The standard set

forth in Strickland applies to claims of ineffective assistance of counsel at each phase of trial. See

Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim.App. 1999).



       Mr. Hawkins:            Yes, Your Honor.

       The Court:              Mr. Moeller?

       Mr. Moeller:            That is correct.


                                                  3
               An allegation of ineffective assistance of counsel must be firmly founded in the

record with the record affirmatively demonstrating the alleged ineffectiveness. Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In a direct appeal, a reviewing court is rarely provided

with a record capable of providing a fair evaluation of the merits of such an allegation of ineffective

assistance as the record often does not adequately reflect the failings of trial counsel. Id. at 813-14.

Consequently, we indulge a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance. Id.

               Appellant argues that his counsel rendered ineffective assistance by not seeking a

severance of his case from the case against his father, Robertson Sr. A request for severance, when

it is not required as a matter of law, is a purely tactical decision to be made by trial counsel and his

client. Woods v. State, 998 S.W.2d 633, 635 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

Even when a severance is mandatory upon the request of counsel,2 counsel may have strategic

reasons for not requesting severance. Id. For example, the evidence may be such that it is

advantageous to be tried along with a codefendant because the contrast in culpability or involvement

between the two defendants favors a strategy of allowing the jury to focus on the codefendant, rather

than the alternative of being tried alone. Id. at 635-36. Thus, even though appellant may argue

ineffective assistance under these circumstances, that alone does not overcome the presumption that

counsel’s failure to request a severance was sound trial strategy. Id. at 636.




       2
           There are two grounds for mandatory severance upon timely request of counsel: (1) when
there is a previous admissible conviction against one defendant, and (2) when a joint trial could be
prejudicial to any defendant. See Tex. Code Crim. Proc. Ann. art. 36.09 (West 2006); see also
Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006).

                                                   4
               The record in this case, including appellant’s motion for new trial and the record of

the hearing on appellant’s motion for new trial, is silent as to the reasons appellant’s counsel agreed

to the joint trial instead of requesting a severance. Under these circumstances, we will not speculate

regarding the manner in which trial counsel conducted appellant’s defense. Gamble v. State,

998 S.W.2d 633, 635-37 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant has not rebutted

the presumption that his counsel’s failure to request a severance was a decision made in the exercise

of reasonable professional judgment. See Woods, 998 S.W.2d at 636.

               Affirmed.



                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 12, 2007

Do Not Publish




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