Opinion
No. 05-04-01821-CR
Opinion issued January 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80948-03. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
A jury convicted Bradley Aaron Ball of aggravated assault with a deadly weapon. In two issues, appellant now complains he was denied effective assistance of counsel and the trial court erred in denying his motion for mistrial. We affirm the trial court's judgment. This matter arises out of a fight that occurred at a house party attended by recent high school graduates and high schoolers. Appellant was at the party with some friends when he started a fight with Joshua Liescheski. Appellant initially mistook Liescheski for Liescheski's brother, Jacob. Even after Liescheski corrected appellant's mistake, however, appellant attempted to swing at him stating something to the effect of, "It doesn't matter. It's okay, you will do." According to Liescheski, after he and appellant "tussled for a minute," appellant yelled something like, "Get him," and Liescheski felt people hitting him from every angle and fell to the ground. There was testimony from several party goers that during the fight, appellant struck Liescheski in the head with a pool cue with enough force to break the cue. Liescheski was on the ground and unconscious when a girl who came to the party with appellant tried to help Liescheski. While the girl held Liescheski's head in her lap, appellant attempted to kick him and hit the girl in the face. Liescheski sustained multiple injuries, including a broken jaw. In his first issue, appellant contends he received ineffective assistance of counsel because his attorney did not object to statements during the prosecutor's opening and closing arguments characterizing appellant as someone "who fights whomever he wants to fight, for whatever reason he feels is appropriate, and uses whatever means are available just because he can." Appellant also complains about his attorney's failure to object to the prosecutor's description of appellant in closing arguments as "violent," a "bad man," and a "felon." Appellant contends these statements violated his motions in limine seeking to exclude any references to appellant's other troubles, problems, arrests, or previous convictions. Appellant additionally claims the references to appellant as violent, a bad man and a felon amounted to improper character evidence. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his ineffective assistance claim, appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that the results of the proceedings would have been different absent counsel's errors. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). When the record is silent about the motivation of counsel's tactical decisions, the appellant will rarely overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim App. 2001). We generally assume a strategic motive if any can be imagined and find counsel's performance deficient only if his conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson, at 813-14. Here, the record contains no explanation of counsel's motive in failing to object to the statements in question or trial counsel's explanation for his trial strategy. Without trial counsel's explanation, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. In reaching this conclusion we necessarily reject appellant's contention that counsel should be found ineffective even in the face of a silent record. Appellant's reliance on Andrews to support his position is misplaced. In Andrews, trial counsel failed to object to a misstatement of law on sentencing during the prosecutor's closing argument. Andrews, 159 S.W.3d at 103. Here, trial counsel's failure to object does not rise to the level of outrageous conduct at issue in Andrews in which no reasoning would have justified the failure to object. Id. We resolve appellant's first issue against him. In his second issue, appellant asserts the trial court erred in denying his motion for mistrial. During the guilt-innocence phase of the trial, the State played an audiotape in the jury's presence that indicated appellant had more problems the night following the fight with Liescheski and "got pelted on with a damn baseball bat." Although counsel immediately objected to this portion of the audiotape after it was heard, he did not ask the judge to instruct the jury to disregard the statement before seeking a mistrial. Instructions to disregard have been found adequate to cure error even when witnesses have violated a motion in limine or referenced an extraneous offense. See Whitaker v. State, 977 S.W.2d 595, 600 (Tex.Crim.App. 1998) (extraneous offense); Herrero v. State, 124 S.W.3d 827, 835 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (violation of motion in limine); Martinez v. State, 844 S.W.2d 279, 284 (Tex, App.-San Antonio 1992, pet. ref'd) (extraneous offense in violation of motion in limine). When a party's first action is to move for mistrial, however, the scope of appellate review is limited to the question of whether the trial court erred in not terminating the trial. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004). We will not reverse a judgment that could have been cured by a jury instruction when the appellant did not request this lesser remedy. Id. In the case before us, we conclude an instruction to disregard would have cured the prejudice, if any, resulting from the reference to other problems appellant had the night following the fight with Liescheski. Because an appropriate instruction could have cured any prejudice resulting from the complained-of audio tape statements, appellant has not established the trial court erred in denying his motion for mistrial. We resolve appellant's second issue against him. We affirm the trial court's judgment.