Summary
presuming trial counsel's failure to object to appellant's criminal history report including unadjudicated offenses was reasonable because record was silent as to why he did not object
Summary of this case from Hudson v. StateOpinion
No. 10-02-042-CR.
Opinion delivered and filed June 11, 2003. DO NOT PUBLISH.
From the 249th District Court, Johnson County, Texas, Trial Court # F35179.
Before Chief Justice Davis, Justice Vance, and Justice Gray
MEMORANDUM OPINION
Wilbert Ray Watkins ("Watkins") appeals from a conviction for three counts of delivery of a controlled substance. Counts one and three were for delivery of a controlled substance less than a gram, and count two was for delivery of a controlled substance greater than or equal to a gram but less than four grams. A jury found him guilty on all three counts, and after Watkins pled "true" to an enhancement paragraph that alleged a twenty-six-year-old conviction for breaking and entering in North Carolina, assessed punishment at two years' imprisonment on the first and third counts and ninety-nine years' imprisonment on the second count. Watkins argues in two related issues that his trial counsel was ineffective for failing to object to the admission of an exhibit consisting of a 1975 North Carolina judgment of conviction for breaking and entering with an attached criminal history report dated October 23, 2001, because: (1) no notice was given under article 37.07 of the Code of Criminal Procedure, and (2) under Texas Rule of Evidence 403, the exhibit's probative value was substantially outweighed by the risk of unfair prejudice. Watkins seeks a new trial on the punishment phase. Because we find that Watkins has not proven by a preponderance of the evidence that his counsel rendered ineffective assistance, we will affirm the judgment.
BACKGROUND
On September 15, 2000, and September 26, 2000, in three separate transactions, Jeral David Gillen ("Gillen"), a longtime crack-cocaine addict turned police informant, purchased crack cocaine from a man he identified at trial as Watkins. According to the evidence, Gillen had approached the police in the afternoon of September 15, offering to trade information in exchange for assistance in getting into a rehabilitation program. The narcotics task-force police searched his body and vehicle and found no drugs. Then, they provided him with a recording device and cash and followed him to Watkins's home. After a brief transaction, Gillen met the narcotics officers at a prearranged location and gave them the crack cocaine and the remainder of the cash. The officers again searched Gillen's body and vehicle and found no other drugs. They repeated this operation a second time on September 15 and a third time on September 26. In all, Gillen purchased less than four grams of crack cocaine from Watkins: 0.97 grams in the first purchase, 1.71 grams in the second purchase, and 0.92 grams in the third purchase. In exchange for Gillen's assistance, the police paid him cash, provided a motel room, and assisted him in entering a rehabilitation program in Abilene. Gillen admitted that, despite the rehabilitation program, he had used crack cocaine just weeks before the trial.INEFFECTIVE ASSISTANCE OF COUNSEL
Due process and the right to a fair trial include a guarantee of assistance of counsel. Thomas v. State, 550 S.W.2d 64, 67 (Tex.Crim.App. 1977). A conviction had with the attorney rendering ineffective assistance is constitutionally infirm. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Dietzman, 851 S.W.2d 304, 305 (Tex.Crim.App. 1993). To prevail on a claim of ineffective assistance of counsel, Watkins must meet the two-pronged test used to analyze claims of ineffective assistance of counsel. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). First, he must show that his trial counsel's performance was so deficient, because he made errors of such a serious nature, that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, assuming he can demonstrate deficient assistance, he must affirmatively prove prejudice. Id. He must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. He bears the burden of proving that counsel was ineffective by a preponderance of the evidence. Id. at 813. The Strickland standard applies to all claims of ineffective assistance of counsel whether arising from guilt-innocence or punishment. Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex.Crim.App. 1999) (overruling Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App. 1980), which applied a different standard to claims of ineffective assistance of counsel at the punishment phase). The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.The First Prong — Trial Counsel's Performance
The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Usually, on direct appeal, the trial record will not be sufficiently developed to enable an appellant to overcome the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. As the Court of Criminal Appeals noted in Thompson, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 814. In other words, when the record is silent as to defense counsel's subjective motivations, courts will ordinarily presume that the challenged action might be considered sound. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Although we ordinarily look to the totality of the representation in ascertaining the effectiveness of counsel, it is possible that a single egregious error of omission or commission may constitute ineffective assistance of counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991).Article 37.07
Watkins first argues that his trial counsel was ineffective for failing to object to the introduction of State's Exhibit 11 under article 37.07 of the Code of Criminal Procedure. Article 37.07 § 3(g) provides:On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Tex. Code Crim. Proc. Ann. art 37.07, § 3(g) (Vernon Supp. 2003) (emphasis added). Watkins complains that the State failed to give notice of its intent to offer certain offenses in the criminal history report, and therefore, his attorney should have objected to this exhibit based on article 37.07. No request under article 37.07 for notice of intent to offer extraneous matters appears in the record. What does appear is a motion entitled "Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct." It is directed to the "honorable judge of said court", and in it "[d]efendant respectfully requests that the Court require the State to disclose any evidence of other crimes, wrongs and/or acts it intends to offer in this case. . . ." Distinguishing between a motion to the trial court and a request to the attorney representing the state, the Court of Criminal Appeals has held: "[W]hen a document seeks trial court action, it cannot also serve as a request for notice triggering the state's duty under article 37.07 § 3(g)." Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App. 1998). Because an objection to Exhibit 11 under article 37.07 § 3(g) would have been unfounded, Watkins has not rebutted the presumption of sound trial strategy. We overrule Watkins's first issue.
Rule of Evidence 403
Watkins next argues that his trial counsel was ineffective because he did not object under Rule 403 to the admission of State's Exhibit 11. Tex.R.Evid. 403. State's Exhibit 11 was the "pen" packet for his 1975 North Carolina breaking-and-entering conviction. Attached to these papers was a criminal history report dated October 23, 2001, which listed the following prior offenses:(Felony) Possession of Cocaine, 04/10/90, dismissed by D.A.;
(Misdemeanor) Possession of Drug Paraphernalia, 04/10/90, guilty;
(Misdemeanor) Assault on a Female, 10/30/90, dismissed with leave;
(Misdemeanor) Injury to Personal Property, 10/30/90, dismissed with leave;
(Misdemeanor) Assault on a Female, 10/30/90, dismissed with leave;
(Misdemeanor) Communicating Threats, 10/30/90, dismissed with leave;
(Felony) Second Degree Rape, 10/30/90, convicted of lesser offense; (Misdemeanor) Assault on a Female, 10/30/90, convicted;(Misdemeanor) Probation Violation, 06/01/95, process revoked;
(Misdemeanor) Harassing Phone Call, 06/01/95, guilty;
(Misdemeanor) Probation Violation Out of County, 06/01/95, process revoked.Watkins contends that his trial counsel should have objected to the inclusion of the criminal history in this exhibit on the basis of Rule 403. In particular, Watkins complains about the unfair prejudice of the second-degree-rape charge, for which he was convicted of the lesser offense of assault. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Id. We look to article 37.07 § 3(a) of the Code of Criminal Procedure in determining the relevance of the offenses about which Watkins complains. Article 37.07 § 3(a) governs the admissibility of evidence during the punishment stage of a trial. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2003). This section provides the following:
Regardless of the pleas and whether the punishments are assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. . . .Id. The Code of Criminal Procedure makes a defendant's prior criminal record relevant to sentencing. Id. However, prior bad acts are relevant to sentencing only if proven beyond a reasonable doubt. Haney v. State, 951 S.W.2d 551, 554 (Tex.App.-Waco 1997, no pet.). The criminal history report attached to Exhibit 11 included references to unadjudicated, prior bad acts that are not part of Watkins's criminal record. Because the exhibit did not prove these bad acts beyond a reasonable doubt, they were not relevant to sentencing. Id. at 554. Naturally, prior bad acts are prejudicial: that is their purpose. Although we recognize that Watkins's attorney may have had a basis for objecting to the criminal history report, the record is silent as to why he did not. Because the record is silent as to why counsel failed to object, we presume his conduct was reasonable. Rylander, 101 S.W.3d at 110; Mallett, 65 S.W.3d at 67. Therefore, we overrule Watkins's second issue.