No. 05-08-00677-CR
Opinion Issued February 19, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-82584-07.
Before Chief Justice THOMAS, RICHTER, and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The trial court convicted appellant of aggravated assault on his plea of guilty, found family-violence, and assessed a nine year sentence. In one issue, appellant contends he received ineffective assistance of counsel. We affirm the trial court's judgment.
Background
When appellant's mother would not give appellant her vehicle's keys, he punched and kicked her until she passed out The next day, appellant found his mother still unconscious and called the hospital. The emergency room doctor did not think she would survive because she had a collapsed lung, broken ribs, and bruises over her entire body. INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends that the State violated Rule 608 (b) of the Texas Rules of Evidence by cross-examining appellant about a specific instance of misconduct-a marijuana lab in his home. Appellant maintains that trial counsel waived appellant's right to complain on appeal of the State's error and deprived him of a fair trial by not timely objecting to the State's violating this rule. The State responds that because appellant pleaded guilty, testified, and asked the trial court to give him probation, punishment remained the only issue at trial and rule 608 (b) does not apply in punishment. Additionally, the State contends that apart from impeachment, the facts of this case established that probation was not an appropriate sentence for appellant. The State argues that because this silent record cannot overcome the presumption that trial counsel's assistance was within the range of reasonably professional assistance, we cannot speculate on the nature of this attorney's trial strategy. 1. Standard of Review
We evaluate the effectiveness of counsel under the standard of 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 claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Mallet v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001) ( citing Strickland, 466 U.S. at 693-94). Our courts have interpreted "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) ( citing Strickland, 466 U. S. at 687 and Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986)). 2. Applicable Law
Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We do not presume that counsel's decision not to object fell within the range of reasonable, professional assistance. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Appellant must show by a preponderance of the evidence that no plausible professional reason exists for a specific act or omission. Bone, 77 S.W.3d at 836. When the record is silent regarding the motive behind counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d at 63. Normally, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson, 9 S.W.3d at 813-14. Ineffective assistance of counsel must be firmly founded in the record, not on retrospective speculation. See Bone, 77 S.W.3d at 835. When a defendant waives jury trial and enters his plea of guilty or nolo contendere to the trial court on a noncapital offense, the proceedings become a unitary proceeding. Lopez v. State, 96 S.W.3d 406, 412 (Tex.App.-Austin 2002, pet. ref'd) ( citing Barfield v. State, 63 S.W.3d 446, 449 (Tex.Crim.App. 2001)). Consequently, no separate "guilt-innocence" phase of trial exists. See Washington v. State, 893 S.W.2d 107, 108-09 (Tex.App.-Dallas 1995, no pet.). Unadjudicated extraneous offenses and prior bad acts are admissible in punishment. Tex. Code Crim. Proc. Ann. Art. 37.07 § 3(a)(1) (Vernon Supp. 2008). The trial court's admitting evidence at punishment in a noncapital felony offense is grounded in policy, not relevancy. Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000). The factfinder needs complete information to tailor an appropriate sentence. Id. 3. Application of Law to Facts
We begin by reminding the parties that appellant pleaded guilty to the indictment alleging that he caused serious bodily injury to his mother by striking her with his hand and kicking her with his foot. Consequently, this proceeding became a unitary one and all evidence was admitted in both punishment and guilt/innocence. Because unadjudicated, extraneous offenses and bad acts are admissible in punishment, trial counsel had no legitimate objection. The trial court would have overruled any objection to the complained-of evidence. Appellant cannot show that trial counsel's failure to object deprived him of a fair trial or "but for" trial counsel's acts a different outcome would result. Viewing the record as a whole, we resolve appellant's issue against him. We affirm the trial court's judgment.