Opinion
No. 09-03-226 CR
Submitted April 19, 2004.
Opinion Delivered July 14, 2004. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 3, Montgomery County, Texas, Trial Court Cause No. 02-176738. Affirmed.
Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
MEMORANDUM OPINION
By information, appellant, Mark Anthony Fullen, was charged with the Class A misdemeanor offense of Assault (family violence) by "intentionally, knowingly, and recklessly caus[ing] bodily injury to another, namely, [W.F.], to wit: BY GRABBING THE NECK OF [W.F.] AND BANGING THE HEAD OF [W.F.] AGAINST A VEHICLE[.]" See Tex. Pen. Code Ann. § 22.01(a)(1), (b) (Vernon Supp. 2004). A jury convicted appellant of the offense, and the trial court assessed punishment at confinement in the Montgomery County Jail for a term of one year, and further fined appellant $500. The trial court suspended immediate imposition of the term of incarceration and placed appellant on community supervision for a period of two years. The victim, W.F., was married to appellant. She testified that she was at appellant's mother's residence at the time of the assault. W.F. and appellant had separated in contemplation of divorce. W.F. testified she had called appellant three times that evening but appellant would not speak with her. As W.F. was outside of the residence preparing to leave, appellant arrived in his vehicle. Appellant's sister, D.P., ran into the house to telephone the police. An altercation took place between W.F. and appellant. There were no other witnesses to the charged assault. W.F. testified that when appellant exited his vehicle, he yelled an obscenity at her, told her he hated her, grabbed her by the throat, and "threw" her head down onto her truck three times. The police arrived and observed appellant to be "belligerent," yelling, screaming, and cursing. Appellant was arrested for assault, family violence. Three issues are presented for our consideration:
1. Whether the trial court committed error "by admitting evidence that the appellant had previously shot a man and had previously assaulted complainant in violation of Tex. R. Evid. 404(b) and 403."
2. Whether the trial court committed error "by admitting evidence that the appellant had previously assaulted his sister in violation of Tex. R. Evid. 404(b) and 403."
3. Whether "[a]ppellant was denied effective assistance of counsel due to the failure of counsel to properly object to the admittance of evidence under Rule 404(b) and Rule 403 of the Texas Rules of Evidence."In issues one and two, appellant directs our attention to certain testimony in the record. The testimony in question under issue one was not objected to under either Rule 404(b) or Rule 403. See Tex.R.App.P. 33.1(a). Trial counsel objected to the testimony referred to in issue two as evidence of "a collateral matter[,]" but made no specific objection to the testimony under either Rule 404(b) or Rule 403. Because the objection at trial does not comport with the contention and argument on appeal, the issue was not preserved for appellate review. Tex.R.App.P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003); Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999). Issues one and two must be overruled. Appellant's final issue complains of trial counsel's ineffective assistance in not objecting to the various extraneous act evidence under Rules 404(b) and 403. In his brief, appellate counsel lists a number of extraneous offense or bad act evidence admitted during the guilt/innocence phase of the trial, some accompanied by objections from trial counsel and some admitted without objection. Appellate counsel also notes that trial counsel failed to request any limiting instruction be included in the trial court's charge to the jury. See Tex. R. Evid. 105(a). The State replies that under certain circumstances a trial attorney may intentionally choose not to object to testimony as a matter of trial strategy. Appellate counsel correctly recognizes that to show trial counsel was ineffective, appellant must demonstrate 1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness, and 2) a probability sufficient to undermine confidence in the outcome of the trial exists that but for trial counsel's errors the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Strickland states that judicial scrutiny of trial counsel's performance must be highly deferential and that a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, 466 U.S. at 689. Failure of appellant to make either of the required showings of deficient performance and sufficient prejudice defeats a claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Appellate counsel argues that there is "no plausible argument for allowing such evidence" to be admitted without objection. In making this contention, appellate counsel appears to assume that each of his listed instances of a lack of objection to the evidence was an instance of objectively unreasonable and unprofessional conduct by trial counsel. Because appellate counsel does not discern any particular trial strategy or tactical purpose in trial counsel's representation, appellate counsel assumes there is none. But, as noted by the Court in Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002), "[t]his [argument by appellate counsel] inverts the analysis. Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission." Appellate courts are rarely in a position to decide the issue of unreasonable performance because the appellate record is often silent concerning the strategy trial counsel may have considered. See Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003). "A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal." Thompson, 9 S.W.3d at 813. The proper procedure for raising an effective assistance of counsel claim is almost always habeas corpus. Aldrich, 104 S.W.3d at 896. The State's brief suggests that where there is only one witness to the offense, a possible trial strategy is to attempt to discredit or impeach the witness's ability to tell the truth on issues not directly related to the charge. In essence, the State suggests that counsel may have permitted the evidence to be admitted so he could prove it false and impeach the victim's testimony on these other acts; the strategy would be to suggest she was also exaggerating the facts surrounding the charged assault. We are not to speculate on a silent record as to the possible strategy behind trial counsel's decisions made during trial. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Labonte v. State, 99 S.W.3d 801, 803-04 (Tex.App.-Beaumont, pet. ref'd), cert. denied, 72 U.S.L.W. 3245, 124 S.Ct. 335, 157 L.Ed.2d 229 (2003). The failure to request limiting instructions has been recognized as reasonable trial strategy under certain circumstances. See Garcia v. State, 887 S.W.2d 862, 881 (Tex.Crim.App. 1994), disavowed on other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex.Crim.App. 2001); see also Perez v. State, 56 S.W.3d 727, 731-32 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Gone v. State, 54 S.W.3d 27, 33-34 (Tex.App.-Texarkana 2001, pet. ref'd); Beheler v. State, 3 S.W.3d 182, 185-86 (Tex.App.-Fort Worth 1999, pet. ref'd); Abbott v. State, 726 S.W.2d 644, 649 (Tex.App.-Amarillo 1987, pet. ref'd). However, even if trial counsel's performance was deficient, appellant fails in his burden to show that because of trial counsel's errors the result of the trial would have been different. See Thompson, 9 S.W.3d at 812. Failure to prove either of the required Strickland prongs defeats a claim of ineffective assistance. Rylander, 101 S.W.3d at 110. The only witness to the assault was W.F. as appellant did not testify in his defense. W.F. was unshakable in her testimony that appellant grabbed her by the throat, and hit her head against the truck three times. Appellant admitted to one of the responding police officers that he had indeed grabbed W.F. "around the neck," so this was not a situation in which the jury had to choose between two plausible yet different versions of events, one which solidly incriminated the accused and one which solidly exonerated him. And appellant's violent and excitable nature was described to the jury by the testimony of both police officers who arrived on the scene only moments after the assault occurred. Appellant has not met his burden to satisfy the second prong of Strickland He has not shown a reasonable probability that, but for trial counsel's failure to properly object to the extraneous act evidence, the result of the proceeding would have been different. Thompson, 9 S.W.3d at 812. Appellant's third issue is overruled. The judgment and sentence of the trial court are affirmed.
CONCURRING OPINION
I concur in the result. I write only to slightly differ with the majority. The majority states: "However, even if trial counsel's performance was deficient. . . ." I would hold the failure to object to extremely damaging and prejudicial extraneous offenses in this instance was, in fact, if not per se, ineffective assistance of counsel. I can not fathom any plausible trial strategy for allowing the jury to hear about unadjudicated assaultive offenses against third parties. I do agree appellant has failed to show how the deficient trial counsel's errors would have produced a different result. Therefore I agree with the majority's affirmance.
Appellate counsel does not even direct any argument to this second prong of Strickland