Opinion
NO. 01-18-01127-CR
04-28-2020
JERAMY RAY BIRCHELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Case No. 17-CR-2023 (Counts I and II)
MEMORANDUM OPINION
A jury convicted appellant, Jeramy Ray Birchell, assault of a family member by impeding the breath of the complainant, with a previous conviction (Count I), and assault of a family member with a previous conviction (Court II). Appellant pleaded true to the enhancement in each count and the jury assessed punishment at 15 years' confinement on Count I and five years' confinement on Count II. In a single issue on appeal, appellant contends that he received ineffective assistance at the punishment phase of trial because trial counsel did not object to the admission of "numerous extraneous bad acts." We affirm.
TEX. PENAL CODE § 22.01(b-3)(3).
BACKGROUND
The complainant, Inayah Smith, has two children, a boy, aged sixteen, and a girl, aged twenty. In 2013, Smith began dating appellant and the two lived together with Smith's children until they broke up in January 2014. About two and one-half years later, Smith and appellant met again and began living together again in September 2016.
In December 2016, Smith and appellant were watching television when Smith's daughter asked them to watch her puppy. An argument ensued between appellant and Smith's daughter. Smith told appellant that they needed to talk, so they went for a drive in her car. Appellant was driving and Smith was in the passenger seat. Appellant parked the car behind their apartment complex. When Smith attempted to grab the keys and turn off the ignition, appellant grabbed and twisted her arms.
Appellant then drove off in a rage and parked in a residential area at a different apartment complex. Smith again attempted to grab the keys, at which point appellant grabbed her by the throat until she could not breathe. Appellant opened the passenger door and used his feet to push Smith out. Appellant then got out of the car, pushed Smith on the ground, held her in a headlock position, and strangled her until she could not breathe and lost consciousness.
A jury convicted appellant of assault of a family member by impeding the breath of the complainant, with a previous conviction (Count I) and assault of a family member with a previous conviction (Count II).
Appellant pleaded true to the enhancement paragraphs, and the jury considered punishment. At the punishment hearing, Smith testified about her relationship with appellant. Specifically, she testified that, during her prior relationship with him, he once threatened to kill her. Though she called the police at the time, the police did not take the threat seriously. Smith also testified that, once, while she was overseas, appellant called her and told her that her car had been stolen; she believed that he was involved in stealing her car and selling it for parts, but she never reported it to the police. Smith testified that she and appellant often argued about whether he could discipline her children, and that appellant was very jealous and controlling during their relationship.
The jury also heard evidence of appellant's prior convictions, including two for assault of a family member.
At the conclusion of the punishment hearing, the jury assessed punishment at 15 years' confinement on Count I and five years' confinement on Count II. This appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, appellant argues that his trial counsel rendered ineffective assistance during the punishment phase of trial because he allowed the introduction of harmful "extraneous offenses" evidence. Specifically, appellant complains that Smith testified at punishment that (1) appellant threatened to kill her during their first relationship in 2014; (2) she believed that appellant participated in stealing her car and selling it for parts in 2016, when she was out of the country, (3) during an argument about appellant disciplining her children, appellant threw her phone and purse out of the car, and, when she got out to retrieve them, appellant drove off; (4) appellant had said derogatory things about her children before the date of the charged offense; and that (5) during their relationship, appellant was very jealous and often accused Smith of cheating on him.
Standard of Review and Principles of Law
The United States Constitution and the Texas Constitution guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. art. 1.051. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prevail on his claim of ineffective assistance of counsel, appellant must prove (1) that his trial counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Under the first prong of Strickland, in reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and were motivated by sound trial strategy. 466 U.S. at 688-89; Lopez, 343 S.W.3d at 142 ("[A]ppellant must prove, by a preponderance of the evidence, that trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms."). To defeat this presumption, any allegation of ineffectiveness must be firmly grounded in the record so that the record affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). Generally, counsel should be given an opportunity to explain his actions before being found ineffective. Id. In most cases, direct appeal is an inadequate vehicle for raising an ineffective-assistance claim because the record is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). In the face of a silent record, we cannot know trial counsel's strategy, so we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Under the second prong of Strickland, in reviewing whether there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694. With respect to claims of ineffective assistance during the punishment phase, appellant must show a reasonable probability that the jury's assessment of punishment would have been less severe in the absence of counsel's deficient performance. Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). It is not sufficient to show that counsel's errors had some conceivable effect on the outcome of the punishment assessed; rather, the likelihood of a different result must be "substantial." Id.
Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Appellant's "failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see Strickland, 466 U.S. at 697.
Discussion
We first note that appellant did not move for a new trial and that the record is silent as to trial counsel's strategy with respect to the complained-of testimony and evidence. A motion for new trial would have provided the trial court with an opportunity to hold a hearing on counsel's performance and to develop a record for appeal. Again, for an appellate court to find on direct appeal that counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record. See Lopez, 343 S.W.3d at 142. When, as here, the record is silent as to counsel's reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Bone v. State, 77 S.W.3d 828, 833-35 (Tex. Crim. App. 2002); Broussard v. State, 68 S.W.3d 197, 199-200 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) ("The Court of Criminal Appeals has repeatedly held that without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective."). "It is not sufficient that the appellant show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence." Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Crocker v. State, 441 S.W.3d 306, 313 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
The failure to object to extraneous offense may be a sound trial strategy. See Williams v. State, 417 S.W.3d 162, 183-84 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (holding that failure to object to extraneous offense evidence may constitute "sound and plausible trial strategy"); Heiman v. State, 923 S.W.2d 622, 626-27 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (holding that failure to object to extraneous offense testimony, in absence of record showing counsel's reasons for not doing so, was not ineffective assistance because not objecting could have been sound and plausible trial strategy). Indeed, it seems that counsel's strategy with regard to these "extraneous offenses" was to question Smith's credibility by pointing out to the jury that she never reported to the police that she believed appellant had stolen her car, and, though she did report the death threat, the police did not take her seriously. Defense counsel also argued to the jury that, even after the death threat, Smith reconciled with appellant and allowed him to move in with her again.
In the absence of a record explaining why counsel did not object, we decline to conclude that counsel's conduct was so outrageous that no competent attorney would have engaged in it or that appellant has rebutted the presumption that counsel's actions were part of some sound trial strategy. See Goodspeed, 187 S.W.3d at 392.
Second, we note that defense counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel. Agbogwe v. State, 414 S.W.3d 820, 835 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Lee v. State, 29 S.W.3d 570, 579-80 (Tex. App.—Dallas 2000, no pet.); see also Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012) ("The failure to object to proper questions and admissible testimony . . . is not ineffective assistance").
Article 37.07 of the Code of Criminal Procedure provides that during the punishment phase of trial, evidence as to any matter deemed relevant to sentencing may be admitted, including evidence of an extraneous offense shown beyond a reasonable doubt to have been committed by the defendant. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). Evidence is relevant to sentencing if it is "helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). This includes but is not limited to evidence regarding an extraneous crime or bad act for which the defendant could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). Prior crimes or bad acts are introduced to provide additional information that the jury may consider in determining what sentence the defendant should receive. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999).
Because the "extraneous offense" testimony by Smith was relevant and admissible for the jury to consider in assessing punishment, defense counsel was not ineffective for failing to object to its admission.
Though appellant claims that he was not given notice of the extraneous offense evidence, he does not contend that he was surprised by it at punishment, nor does he present argument or authority regarding lack of notice. Similarly, appellant does not present argument or authority that there was insufficient evidence to prove the extraneous offenses beyond a reasonable doubt. A failure to cite legal authority or provide substantive analysis of a legal issue presented results in waiver of the complaint. See Stahle v. State, 970 S.W.2d 682, 692 (Tex. App.—Dallas 1998, pet. ref'd.). Accordingly, any arguments regarding lack of notice or insufficiency of the evidence to prove the extraneous offenses are inadequately briefed and waived. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (finding that appellant's brief that contained no argument or citation to any authority "is inadequately briefed and presents nothing for review as this Court is under no obligation to make appellant's arguments for her."); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (stating that appellate court "has no obligation to construct and compose appellant's issues, facts, and arguments 'with appropriate citations to authorities and to the record.'"); Ballard v. State, 537 S.W.3d 517, 528 (Tex. App.—Houston [1st Dist.] 2017, pet. struck) ("An issue that is conclusory and provides no supporting authority presents nothing for appellate review.").
We overrule appellant's sole issue on appeal.
CONCLUSION
We affirm the trial court's judgments.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Kelly and Goodman. Do not publish. TEX. R. APP. P. 47.2(b).