                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00321-CR


BENJAMIN FRANKLIN FORSYTH                                           APPELLANT
A/K/A BENJAMIN FRANKLIN
FORSYTH, JR.

                                         V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1

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                                   I. Introduction

      In four issues, Appellant Benjamin Franklin Forsyth appeals his convictions

for possession of a controlled substance and unlawful possession of a firearm by

a felon. We affirm.



      1
       See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      Based on an informant’s tip, Hood County peace officers executed a

search warrant to search Deborah Hudgins’s two-story house for the presence of

methamphetamine. At the time of the search, Forsyth was renting the upstairs

portion of the house where the officers found .22 caliber ammunition and drug

paraphernalia. In a downstairs closet, officers found .22 caliber shells inside of a

.22 caliber rifle. The State brought two charges against Forsyth, who pleaded

guilty to possession of less than one gram of methamphetamine but not guilty to

possession of a firearm by a felon.

      Forsyth’s trial counsel filed a motion for continuance because Hudgins,

“the sole and essential defense witness,” would be unavailable for the original

trial setting. The motion stated that Hudgins expressed a willingness to testify

without the necessity of a subpoena. The trial court granted this motion and

reset the case for July. Knowing that the trial had been reset for July 7, 2011, but

not knowing what time the trial was scheduled to begin, Hudgins assumed that

the trial would begin at 9:00 a.m. and arrived at the courthouse at 8:30 a.m.

However, courthouse security officers told her that there were no felony trials that

morning,2 and so Hudgins left to take her grandchildren swimming.

      The State’s witnesses, Hood County peace officers, were the only

witnesses to testify at trial. The jury found Forsyth guilty of both charges and

      2
       Hudgins also testified that the officers told her that “there wasn’t any court
that day.”


                                         2
assessed a $10,000 fine for each conviction as well as concurrent sentences of

two and ten years’ confinement for the drug and firearm convictions, respectively.

Forsyth filed a motion for new trial alleging, in part, that his trial counsel had been

ineffective for failing to subpoena Hudgins. To the motion, Forsyth attached an

affidavit, not from his trial counsel but from his appellate counsel. In this affidavit,

appellate counsel averred that trial counsel had told Hudgins to appear, that

Hudgins arrived at the courthouse, and that she was turned away by courthouse

security officers.

      At the hearing on the motion for new trial, Hudgins testified that she had

kept the rifle, which belonged to her nephew, hidden in her downstairs closet and

that she did not believe that Forsyth knew about the rifle because he was only

permitted to enter the lower portion of the house to do laundry. Forsyth also

called his parole officer, Darren Olsovsky, who testified that he had visited

Forsyth’s residence several times but had never entered the downstairs portion

because the upstairs portion had a separate entrance. The trial court denied the

motion for new trial, and this appeal followed.

                        III. Due Process and Rule 21.3(e)

      In his third issue, Forsyth claims that the trial court abused its discretion by

denying his motion for new trial because he was denied federal due process

when courthouse security officers turned Hudgins away from the courthouse.

Because it is unclear from his argument whether he is claiming a due process

violation or claiming that the trial court abused its discretion by failing to grant his


                                           3
motion for new trial under rule 21.3(e), we will address both. See Tex. R. App. P.

21.3(e).

      The proper procedural due process analysis is two-tiered. Rodriguez v.

State, 21 S.W.3d 562, 568 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (op.

on reh’g) (citing Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim. App.

1995)), cert. denied, 532 U.S. 995 (2001). First, the reviewing court must decide

whether a protected liberty or property interest exists. Id. If this interest exists,

the court must ask the second question, which is whether sufficient procedural

safeguards ensure that there is no arbitrary interference with the interest. Id.

      Here, Forsyth does not address the second tier of this inquiry; he does not

claim that his subpoena power or his right to request a continuance was in any

way abridged. See id. Indeed, Forsyth admits that his trial counsel chose not to

subpoena Hudgins, and there is no evidence in the record that Forsyth tried to

move for a continuance after Hudgins failed to appear. See id. (“The fact that

appellant’s reliance [on a witness’s promise to appear] proved to be misplaced

does not constitute interference with his right to compulsory process.”). In any

event, Forsyth’s notice and opportunity to be heard at the hearing on his motion

for new trial was a sufficient procedural safeguard to protect his liberty interest.

See id. (noting that deprivation of a protected interest requires notice and an

opportunity to be heard and determining that hearings on appellant’s motion for

continuance and motion for new trial provided sufficient safeguards).




                                         4
      Further, to the extent that Forsyth claims that the trial court abused its

discretion by denying his motion for new trial in violation of rule 21.3(e), the

granting or denying of a motion for new trial lies within the trial court’s discretion.

Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). When reviewing a trial

court’s denial of a motion for new trial, we do not substitute our judgment for that

of the trial court; rather, we consider whether its decision was arbitrary or

unreasonable. Id.

      Rule 21.3(e) requires, in part, that a motion for new trial must be granted

“when a material defense witness has been kept from the court by force, threats,

or fraud.” Tex. R. App. P. 21.3(e). However, Forsyth does not argue on appeal,

nor did he argue in his motion for new trial, that anyone kept Hudgins away from

the court by force, threats, or fraud, and the record does not support such a

claim. To the contrary, although Forsyth has maintained that courthouse security

officers gave Hudgins misinformation, he does not claim, and there is no

evidence to show, that they did so fraudulently.         Because Forsyth failed to

establish entitlement to relief under rule 21.3(e), the trial court did not abuse its

discretion by denying Forsyth’s motion for new trial, we overrule his third issue.

See Rodriguez, 21 S.W.3d at 567; Lewis, 911 S.W.2d at 7.

      Forsyth’s fourth issue is the same as his third except that he argues that

he was deprived of due course of law under the Texas constitution. However,

Forsyth only raised his constitutional challenges below in his motion for new trial,

and in that motion, he failed to argue that the state due course of law provision


                                          5
provides greater protection that the federal due process clause. Therefore, he

has failed to preserve this complaint for appellate review. See Pena v. State,

285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that by failing at trial to

distinguish the rights and protections afforded under the Texas due course of law

provision from those provided under the Fourteenth Amendment, appellant failed

to preserve for appellate review his complaint that the due course of law

provision provides greater protection). Accordingly, we overrule Forsyth’s fourth

issue.

                        IV. Ineffective Assistance of Counsel

         In his first issue, Forsyth claims that the trial court abused its discretion by

denying his motion for new trial because his trial counsel was ineffective under

the United States Constitution for failing to subpoena Forsyth’s sole witness.

Forsyth’s second issue is the same except that he claims that his trial counsel

was ineffective under the Texas constitution. Because Texas’s right to counsel

provision is no more protective than its federal counterpart, Hernandez v. State,

988 S.W.2d 770, 772 (Tex. Crim. App. 1999), we will address his first and

second issues together.

A. Standard of Review

         To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have


                                             6
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is

highly deferential, and the reviewing court indulges a strong presumption that

counsel’s conduct fell within a wide range of reasonable representation. Salinas

v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. “In the

majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel’s actions.”       Salinas, 163

S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption

of reasonable professional assistance, “any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based




                                         7
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.

Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

B. Analysis

      Forsyth argues that trial counsel was ineffective for failing to subpoena and

call3 Hudgins because Hudgins was available and her testimony would have

benefitted Forsyth. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)

(holding that failure to call a particular witness will not be considered deficient

performance absent a showing that the witness was available and that the

defendant would have benefitted from the witness’s testimony).




      3
        Forsyth does not distinguish his contention that trial counsel failed to
subpoena Hudgins from his contention that trial counsel failed to call her, so we
will not treat the two differently. See Tex. R. App. P. 47.1.


                                          8
      There is little question that Hudgins was available on the day of the trial

and that her testimony would have benefitted Forsyth, but this does not mean

that trial counsel’s failure to subpoena her constituted ineffective assistance

because Forsyth has failed to overcome the presumption that trial counsel’s

decision not to subpoena Hudgins “might be considered sound trial strategy.”

See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Indeed, the decision to

subpoena a defense witness is considered a matter of trial strategy. Robertson

v. State, No. 01-02-00046-CR, 2002 WL 31236391, at *1 (Tex. App.—Houston

[1st Dist.] 2002, no pet.) (not designated for publication) (“Placing a witness

under orders of the trial court, rather than merely asking the witness to return

voluntarily, might cause apprehension, resentment, or even injurious testimony

on the part of a witness alienated by the coercive action.”); see Pineda v. State, 2

S.W.3d 1, 6 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (finding no authority

for the proposition that failure to subpoena a witness is ineffective assistance).

      By not addressing trial counsel’s motives, Forsyth appears to take the

position that regardless of motive, trial counsel’s failure to subpoena Hudgins

was “so outrageous that no competent attorney would have engaged in it.” See

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). However,

this is not a case in which trial counsel wholly failed to contact a defense witness.

Cf. Shelton v. State, 841 S.W.2d 526, 526–27 (Tex. App.—Fort Worth 1992, no

pet.) (holding, without any evidence of counsel’s trial strategy, that counsel’s

failure to contact a key defense witness was ineffective). “Rather, this is a case


                                          9
in which the . . . witness promised to appear and testify at trial and counsel

reasonably expected [her] to appear, but the witness nonetheless did not.”

Pineda, 2 S.W.3d at 6; see Robertson, 2002 WL 31236391, at *1 (holding that

even though trial counsel had disavowed any trial strategy in not requesting

subpoenas, his belief that the witness would appear was not error, much less

conduct falling below objective standards of reasonableness).

      Therefore, even if trial counsel’s only reason for failing to subpoena

Hudgins was his belief that she would appear, Forsyth has not overcome the

presumption that this fell within the wide range of reasonable professional

assistance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Salinas, 163

S.W.3d at 740. Because Forsyth did not satisfy his burden to meet the first

prong of Strickland, we need not address the second prong. See Strickland, 466

U.S. at 697, 104 S. Ct. at 2069. Therefore, we hold that trial counsel was not

ineffective, see id. at 687, 104 S. Ct. at 2064, and we overrule Forsyth’s first and

second issues.




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                                V. Conclusion

     Having overruled each of Forsyth’s issues, we affirm the trial court’s

judgment.4


                                                 PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 12, 2012




      4
       Our holding, of course, does not foreclose Forsyth’s right to pursue a
post-conviction writ upon the conclusion of this appeal. See Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (recognizing that “an application for
a writ of habeas corpus is the more appropriate vehicle to raise ineffective
assistance of counsel claims”).


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