Dang Duy Truong v. State
01-15-00238-CR
| Tex. App. | Dec 8, 2016Background
- Dang Duy Truong was convicted by a jury of aggravated robbery with a deadly weapon; punishment assessed at 40 years imprisonment.
- At punishment phase, appointed counsel Thomas Radosevich called only Truong, who testified about probation and requested community supervision.
- Truong filed a motion for new trial alleging ineffective assistance at punishment for failure to investigate and present mitigation witnesses; the trial court held an evidentiary hearing and denied the motion.
- Affidavits presented by Truong included testimony from two friends (Nguyen, Ho) describing Truong’s character, an adoptive mother (Thai) describing traumatic childhood and possible mental-health family history, and attorney Lott Brooks about potential retained counsel issues.
- Radosevich submitted affidavits claiming he contacted Nguyen and Ho, met with Truong, provided written memoranda about needed mitigation, and that he was not aware of the adoptive mother; Brooks said he was not hired.
- The trial court credited the conflicting evidence sufficiently to conclude counsel’s investigation and tactical choices were reasonable; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance at punishment for failing to investigate/present mitigation | Truong: counsel failed to contact and call available character and family witnesses and thus did not present mitigating background evidence | State (via counsel): Radosevich attempted contact, met with Truong, provided memos, and reasonably chose not to call witnesses who would not meet or whose existence he was not aware of | Court: No abuse of discretion; counsel’s performance not shown deficient under Strickland |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance test)
- Wiggins v. Smith, 539 U.S. 510 (counsel must reasonably investigate mitigation; reasonableness measured by investigation supporting tactical choices)
- Holden v. State, 201 S.W.3d 761 (denial of new-trial motion after hearing reviewed for abuse of discretion)
- Webb v. State, 232 S.W.3d 109 (appellate standard: view evidence in light most favorable to trial court ruling)
- Riley v. State, 378 S.W.3d 453 (trial court is sole factfinder on credibility at motion-for-new-trial hearing)