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Clifton v. State

Court of Appeals of Texas, Fifth District, Dallas
Oct 23, 2009
No. 05-09-00006-CR (Tex. App. Oct. 23, 2009)

Opinion

No. 05-09-00006-CR

Opinion Filed October 23, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the County Criminal Court No. 6, Dallas County, Texas, Trial Court Cause No. MB-07-57978-G.

Before Justices O'NEILL, FRANCIS, LANG.


MEMORANDUM OPINION


Timothy Scott Clifton appeals the trial court's judgment convicting him of operating a vehicle while intoxicated. Following his plea of not guilty, the trial court sentenced him to 150 days in jail, probated for 18 months, and a $850 fine. Appellant raises three issues on appeal. In his first and second issue, appellant claims his trial counsel was ineffective because he impeached a defense witness with an inadmissible conviction and failed to object to the State's reference to a police report not in evidence. In the third issue, appellant contends the trial court erred in refusing his offer of proof, and requests this Court abate the appeal. Based on the record and analysis below, we decide all three issues against him. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Clifton was arrested on July 7, 2007 for operating a motor vehicle while intoxicated. He entered a plea of not guilty, and the case went to trial before a jury on October 7, 2008. At trial, the State called arresting officer, Anthony Foster, to testify. Foster testified he "pulled [Clifton] over" when he witnessed the vehicle "swerve" between lanes a number of times. According to Foster's testimony, when he approached Clifton's vehicle, he noticed Clifton's "blood shot eyes" and a "strong odor of alcoholic beverage." To determine if Clifton was intoxicated, Foster asked him to recite the alphabet, and perform the one-leg stand and walk and turn tests. Based on the results of the tests administered, Foster concluded Clifton was intoxicated and arrested him. Foster recorded the events between the initial stop and the arrest on the police video camera. During the defense's case-in-chief, Clifton testified on his own behalf. Clifton testified he had two rum and cokes at dinner, at least two hours before being stopped by Officer Foster. The passenger in the car, Jennifer O'Connor, also testified to the events that occurred on the night of the arrest. She corroborated Clifton's story, and stated they both had two drinks with dinner. She testified that she did not believe Clifton was intoxicated. She noted she was a bartender and "TABC" certified. According to her testimony, "TABC certification" demonstrates that bartenders have received training in recognizing the signs of intoxication so they can "make correct decisions dealing with people who are drinking, whether or not they are going to leave [the] bar . . . and whether or not it's safe to serve them." During the traffic stop, Foster "cleared" O'Connor and released Clifton's car to her. On cross examination, the State questioned O'Connor about her statements to the police officer at the scene of the arrest regarding the number of drinks imbibed. When the State asked O'Connor whether she told the police they had several drinks an hour prior to the stop, she asserted, "I did not say several. I said two." Thereafter, the State continued to question her about other allegedly inconsistent statements she made to the police officers on the evening of the arrest:
[State]: Did you say . . . that you knew nothing about Mr. Clifton's drinking from 8 p.m. to 9:30 p.m.
[O'Connor]: I can't recall that conversation taking place, to be honest with you. I know I was specific about-at eight o'clock . . . we had two drinks, and then we ate, and then we went across the street and had no more. . . .
[Counsel]: So if I tell you that the report says that you stated [to the police officer] that you met up an hour prior to the traffic stop; number two, that the defendant and you had several drinks in that time span; and, number three, that you knew nothing about the defendant drinking between 8:00 p.m. and 9:30 p.m., if I tell you that this is what the report says, are you telling me that's a lie.
[O'Connor]: I am saying that I don't believe that to be correct, so yes.
After O'Connor disputed the accuracy of the police report, the State passed the witness for re-direct examination. On re-direct, the retained defense counsel elicited the following testimony:
[Counsel]: . . . Since we don't know where this is going to go, I'm going to-I need to talk to you about an unfortunate incident in your life. A few years ago, you had an encounter with the police in a similar situation.
[O'Connor]: I sure did.
[Counsel]: And that's all behind you, but it did happen?
[O'Connor]: Sure is, yes.
[Counsel]: But having happened-let's go ahead and tell the jury what happened. You got an arrest and conviction for DWI?
[O'Connor]: I sure did, over two years ago.
[Counsel]: You pled guilty, and you've done probation, and it's all done?
[O'Connor]: It's all done, yes.
[Court]: Excuse me, how is this relevant to these proceedings?
[Counsel]: Well, I just don't want it coming up later. . . . .
[Court]: It's not relevant, move on.
[Counsel]: All right. Cool. Pass the witness.
At the end of the proceedings, the jury found Clifton guilty of the offense charged, and the trial court assessed punishment as 150 days in county jail and a $850 fine. The jail time was suspended for a period of 18 months contingent upon proper completion of community supervision. Clifton filed a motion for new trial contending he was denied effective assistance of counsel. In his motion for new trial, Clifton argued trial counsel was ineffective because (1) counsel impeached his own defense witness with an inadmissible prior conviction and (2) counsel failed to adequately investigate the facts of the case. On December 12, 2008, the trial court denied the motion for new trial after a hearing. Clifton timely filed this appeal.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his first and second issue, Clifton argues his counsel was ineffective for "impeach[ing] a defense witness with an inadmissible misdemeanor DWI conviction," and for failing "to object when the prosecutor referred to a report that was not in evidence." The State responds there was no reversible error or prejudice because "the record fails to show that the conduct of Clifton's counsel was so deficient as to have probably changed the results of the case." We address Clifton's first and second issues together.

A. Standard of Review and Applicable Law

Effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (en banc). To prevail on a claim of ineffective assistance of counsel, an 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 Strickland, 466 U.S. at 687-88. An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813. An appellate court's review of trial counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). An appellate court determines the reasonableness of counsel's challenged conduct in context and views it as of the time of counsel's conduct. Andrews, 159 S.W.3d at 101. An appellate court should not try to second-guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex. Crim App. 1999) (en banc). An appellate court should be hesitant to declare trial counsel ineffective based on a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind trial counsel's actions. Thompson, 9 S.W.3d at 814. To defeat the strong presumption of reasonable professional assistance, an appellant must prove by a preponderance of the evidence that counsel's representation was unreasonable according to prevailing professional norms and that any alleged inaction was not sound legal strategy. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). An appellant must identify the specific acts or omissions that were not the result of professional judgment. Strickland, 466 U.S. at 690. "Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient and lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent regarding counsel's reasons for his conduct, an appellate court should defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) (en banc). Further, trial counsel ordinarily should be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex. Crim. App. 2005); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (en banc). Because the reasonableness of counsel's choices often involve facts that do not appear in the appellate record, an application for a writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).

C. Application of Law to Facts

Clifton contends his trial counsel was deficient for impeaching a defense witness with an inadmissible DWI conviction and for failing to object when the State referenced a police report not in evidence. With regard to the testimony about the DWI conviction, he argues there was "no legitimate strategy to impeach his own witness" because if "the State sought to impeach the witness with the prior DWI conviction it would have been error." As to trial counsel's failure to object to the police report references, Clifton notes "there was no testimony on the Motion for New Trial on this issue," but argues "appeal counsel can think of no strategic reason" for trial counsel's failure to object. Finally, Clifton contends when both acts of trial counsel are considered in the totality of the circumstances, counsel's representation was insufficient. First, we address Clifton's contention that he was "deprived of his right to effective representation of counsel when trial counsel failed to object when the prosecutor referred to a police report that was not in evidence." The State referenced the report on two separate occasions. The State mentioned the report during O'Connor's cross examination after she repeatedly denied making inconsistent statements. Then, in the State's closing argument, the prosecutor recounted the inconsistencies in O'Connor's testimony and asserted "the report [said] otherwise." As stated above, Clifton's complaint about trial counsel's failure to object to the police report references was not mentioned in the motion for new trial or the hearing on that motion. Specifically citing Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App. 1992), Clifton argues ineffectiveness should be presumed even though the record is silent as to trial counsel's motivation. Clifton's reliance on Vasquez is misplaced because, in the case before us, the record does not show a clear violation of law. See id. (defense counsel was ineffective for not requesting a jury instruction on necessity when the evidence "clearly" showed a defense of necessity). Additionally, Clifton argues the police report reference violated Crawford v. Washington, 541 U.S. 36, 124 (2004), and required trial counsel's objection. However, he does not cite any cases that show an objection was required nor does he demonstrate how Crawford was violated. The State argues trial counsel may not have objected because trial counsel believed the reference was "permissible." Also, the State asserts, "prior inconsistent statements on a material issue made by a witness are admissible to impeach the witness." See Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). Because the record is silent, we can not assume trial counsel did not have a legitimate strategy when he refrained from objecting. We conclude Clifton has not met the first part of the Strickland test as to this alleged deficiency. Next, we address Clifton's contention regarding his trial counsel's use of the DWI conviction against a defense witness. The motion for new trial and the subsequent hearing specifically raised counsel's ineffectiveness for impeaching a defense witness with a DWI conviction. During the motion for new trial hearing, trial counsel testified his "trial strategy" for eliciting the DWI conviction from O'Connor "was to prevent the State from impeaching her in a way that would be more damaging to Mr. Clifton." Trial counsel acknowledged his "mistake," and noted he knew of "the general rule" that "a witness could not be impeached with a misdemeanor DWI," but did not consider it. Assuming, without deciding, Strickland's first element is met as to this assertion of improper impeachment, we can not say such an error constitutes ineffective assistance. In order for an single deficiency to constitute ineffective assistance of counsel the deficiency must be so "serious" that the error alone could have changed the results of the proceedings. See Ex parte Felton, 815 S.W.2d 733, 735-36 (Tex. Crim. App. 1991) (failure to challenge a void prior conviction used to enhance punishment rendered counsel ineffective because the conviction "in all probability" affected the jury's assessment, as "it started their assessment at a higher level"). The deficiency in Felton is markedly different from the one in this case. Here, the misdemeanor DWI conviction was a witness's, rather than the defendant's. Additionally, Clifton has not shown how the prior DWI conviction "in all probability" affected the jury's assessment. See id. We also compare Ex Parte Menchaca, 854 S.W.2d 128, 133 (Tex. Crim. App. 1993) (en banc), where the Court of Criminal Appeals held the introduction of a defendant's inadmissible prior rape conviction during the guilt/innocence phase created substantial prejudice. However, as with Felton, the impeachment evidence in Menchaca introduced against the defendant "permeated" the entire trial, and guilt was seriously contested. Id. Here, because the evidence was introduced against an otherwise strong defense witness, we cannot reach the same conclusion regarding the prejudicial effect. Compare Menchaca, 845 S.W.2d 133, with Kendrick v. State, 729 S.W.2d 392, 395 (Tex. App.-Fort Worth 1987, writ ref'd) (defense counsel was not ineffective for impeaching every member of defendant's family with an inadmissible criminal record because appellant failed to show harm). Further, the record demonstrates substantial evidence from which the jury could have established guilt. See Gonzales, 626 S.W.2d 888, 893 (Tex. App.-San Antonio 1981, writ ref'd) (defense counsel was not ineffective for introducing defendant's inadmissible prior conviction because appellant failed to show harm). A jury could have reasonably concluded Clifton was intoxicated because the police officer testified Clifton smelled strongly of alcohol, and the results of the field sobriety tests indicated he was intoxicated. Additionally, when trial counsel attempted to impeach O'Connor, the court noted the inadmissibility of the prior DWI offense and specifically told counsel "its not relevant, move on." Although the statement, "its not relevant, move on," was not a formal instruction to the jury, the trial court's comments to trial counsel reduced the impact of the inadmissible conviction. Moreover, notwithstanding the action of counsel, the jury may have discredited O'Connor's testimony because, as the State noted, O'Connor was a friend of Clifton's, and the State presented evidence that her testimony conflicted with statements she made on the night of the arrest. Based on the record, Clifton did not prove sufficient harm to show that he "was deprived of the assistance of effective counsel." Consequently, we resolve his first and second issues against him.

III. ABATEMENT OF APPEAL

In his third issue, Clifton argues he is entitled to an abatement of appeal because the trial court would not "permit counsel to make an offer of proof" after ruling "that [a] witness could not testify whether the field sobriety tests were properly conducted." The State responds an abatement is not necessary because "Clifton was given adequate opportunity" to demonstrate whether the contested testimony was admissible.

A. Standard of Review

The trial court's failure to allow an offer of proof or a bill of exception is subject to a harm analysis. Tex. R. Crim. Evid. 103; Williams v. State, 964 S.W.2d 747, 753(Tex. App-Houston [14th Dist.] 1998, pet ref'd). The reviewing court may only disturb the trial court's ruling if the error is harmful. Tex. R. Crim. Evid. 103. An error is harmful if it affects the substantial rights of the offering party. Id.

B. Applicable Law

When the trial court excludes evidence, the "offering party shall, as soon as practicable, but before the court's charge is read to the jury be allowed to make, in the absence of its jury an offer of proof." Tex. R. Evid. 103(b). Furthermore, when the complaint on appeal includes a matter not in the record, the appellant must file a formal bill of exception in order to preserve the issue for appeal. Tex. R. App. P. 33.2 ("To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception."). The trial court does not have discretion to deny a request to perfect a bill of exception because the right to make an offer of proof is absolute. Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994); Spence v. State, 758 S.W.2d 597, 599-60 (Tex. Crim. App. 1988). If the trial court denies an offer of proof, and such denial affected the substantial rights of the offering party, the remedy for the error is not a new trial. Spence, 758 S.W.2d at 599-60. Rather, the reviewing court should abate the appeal to permit counsel to develop the appellate record. Id.

C. Application of Law to Facts

Clifton contends the trial court wrongfully denied him an opportunity to make an offer of proof regarding former police officer Tom Swearingen's testimony. Defense counsel called Swearingen to testify on the procedure for conducting field sobriety tests. Prior to allowing his testimony, the trial court held a hearing in which the court ruled Swearingen could testify about his experience investigating DWI cases and about general procedures for conducting field sobriety tests. However, the court specifically ruled that Swearingen could not critique the arresting officer's performance on the videotape of the arrest because Swearingen was not at the scene of the arrest. Prior to resting his case, defense counsel asked the court to make an offer of proof outside the presence of the jury. The trial court denied the request, stating that the excluded evidence was already in the record. Defense counsel disagreed, but trial court, nevertheless, denied the request. Assuming without deciding, the trial court erred, the issue is not properly preserved for appeal because Clifton did not file a formal bill of exception. As such, he is precluded from complaining on appeal "about any matter that would not otherwise appear in the record." Tex. R. App. P. 33.2. Even if the issue was properly preserved for appeal, the reviewing court may only abate the appeal if the error was harmful. Tex. R. Crim. Evid. 103. A denial of an offer of proof can only be harmful if it is relevant to an issue on appeal. Tex. R. App. P. 34.5(c)(1), 34.6(d); Arnold v. State, 234 S.W.3d 664, 678 (Tex. App.-Houston [14th Dist.]2007, no pet) (abatement was unnecessary because the excluded evidence was not relevant to any issue on appeal). The only issue he raised in his appeal was the ineffectiveness of counsel, which was resolved independent from the excluded evidence. Because we resolved all other issues on appeal against Clifton, abatement would be a "useless gesture." Id. Furthermore, in his appellate brief, he does not identify the purpose of the supplemental evidence nor does he specifically allege being harmed by the omission. Id. He only contends the trial court precluded him from making an offer of proof, and asks this Court to abate the appeal. For these reasons, an abatement of the appeal is not warranted. Accordingly, we resolve the third and final issue against Clifton.

IV. CONCLUSION

We conclude appellant did not prove by a preponderance of evidence that he received ineffective assistance of counsel. Moreover, appellant is not entitled to an abatement of appeal. We decide appellant's three issues against him. The trial court's judgment is affirmed.


Summaries of

Clifton v. State

Court of Appeals of Texas, Fifth District, Dallas
Oct 23, 2009
No. 05-09-00006-CR (Tex. App. Oct. 23, 2009)
Case details for

Clifton v. State

Case Details

Full title:TIMOTHY SCOTT CLIFTON, Appellant v. STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 23, 2009

Citations

No. 05-09-00006-CR (Tex. App. Oct. 23, 2009)

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