Opinion
No. 14-05-00682-CR
Memorandum Opinion filed July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause No. 999902. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
MEMORANDUM OPINION
Appellant Jesse Cossio was convicted of driving while intoxicated with a child passenger and sentenced to 180 days' confinement and a $1,500 fine. In a single issue, appellant claims he received ineffective assistance of counsel at trial. We affirm. On the evening of September 5, 2004, Officer Dutch Lane of the La Porte Police Department pulled over appellant and his minor son after observing appellant speeding and failing to drive in a single lane. Officer Lane noticed appellant's breath smelled of alcohol and that he had bloodshot eyes and slurred speech. Consequently, the officer administered several field sobriety tests, which revealed impairment "clues," and asked appellant what he had to drink that night. Appellant first stated that he had one beer and then admitted he had four. Officer Lane arrested appellant, and the State charged him with driving while intoxicated with a child passenger. Before trial, the State filed a notice of intent to use evidence of appellant's August 15, 1995 forgery conviction. Appellant testified at trial on May 24, 2005, about three months before the prior conviction became ten years old. During direct examination, appellant's counsel asked him about the prior conviction. On the same date, appellant signed a stipulation to the prior conviction. The prosecutor cross-examined appellant about the conviction but did not enter the stipulation into evidence until the punishment phase. In his sole issue, appellant claims his counsel was deficient for introducing his prior conviction. Ineffective assistance claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show (1) that counsel's representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App. 1995). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. To defeat this presumption, "'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). When no specific reason is given for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813B14. Further, when counsel has not been afforded an opportunity to explain his or her decisions, we do not find deficient performance unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). At the time of trial, appellant's prior conviction was less than ten years old, and thus its admissibility was governed by Texas Evidence Rule 609(a). Rule 609(a) provides that evidence that a witness was convicted of a prior felony or a crime of moral turpitude is admissible to attack the witness's credibility if the court determines its probative value outweighs its prejudicial effect. See TEX. R. EVID. 609(a). Appellant claims that, because he was eighteen years old when he was convicted and nearly ten years had passed since the date of conviction, the prior conviction would "likely" have been inadmissible under Theus v. State, 845 S.W.2d 874 (Tex.Crim.App. 1992). In Theus, the Court of Criminal Appeals listed five nonexclusive factors for weighing a prior conviction's probative value against its prejudicial effect. Id. at 880. However, appellant concedes that all but one of the Theus factors support the prior conviction's admissibility. Thus, because the State had given notice of its intent to introduce this likely admissible prior conviction, counsel could have reasonably decided to introduce it first and thereby "remove the sting" from the impact of it first coming from the State. See Virgil v. State, No. 14-99-00214-CR, 2001 WL 123990, at *3 (Tex.App.CHouston [14th Dist.] Feb. 15, 2001, pet. ref'd) (not designated for publication) (stating that this "common practice" may constitute "sound trial strategy, particularly where credibility is an issue"); see also Rodriguez v. State, 129 S.W.3d 551, 558B59 (Tex.App.CHouston [1st Dist.] 2003, pet. ref'd) (noting that questioning defendant first about prior conviction that State intended to introduce was sound strategy to bolster appellant's credibility). Appellant additionally argues counsel should have at least first tested the admissibility of the prior conviction outside the jury's presence before introducing it. Although we agree that counsel could have made such a preliminary motion, we note that, to succeed on this claim, appellant must show the motion would have been successful. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (holding that to prevail in an ineffective assistance claim for failing to attempt to suppress evidence, the defendant must show that the motion to suppress would have been granted); Edmond v. State, 116 S.W.3d 110, 112 (Tex.App.CHouston [14th Dist.] 2002, pet. ref'd) (noting that to prevail on such a claim, "the record on direct appeal must affirmatively prove appellant's motion to suppress would have been granted"). As discussed above, appellant concedes that four of the Theus factors support admissibility. Accordingly, appellant has not met his burden of demonstrating that counsel was deficient. We overrule appellant's sole issue and affirm the judgment of the trial court.
Although in his brief, appellant suggests that "it is not entirely clear" whether his prior conviction occurred within ten years of trial, the record shows appellant stipulated to a forgery conviction date of August 15, 1995 and made no objection to its admission during punishment.
The Theus factors include (1) the impeachment value of the prior offense, (2) the temporal proximity of the prior offense relative to the charged offense and the defendant's subsequent history, (3) the similarity between the prior and charged offenses, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880. Appellant concedes that all but the second factor support admissibility of the prior conviction.