No. 14-03-00118-CR.
Memorandum Opinion filed February 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 39,753. Affirmed.
Panel consists of Justices ANDERSON and SEYMORE and Senior Chief Justice MURPHY.
Senior Chief Justice Paul C. Murphy sitting by assignment.
CHARLES W. SEYMORE, Justice.
A jury found appellant Lloyd Robert Dazey guilty of aggravated sexual assault of a child. He appeals his conviction contending that (1) his trial counsel was ineffective; and (2) the trial court erred in ruling that evidence of his prior conviction would be admissible. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
Discussion
In his first issue, appellant contends his trial counsel was ineffective because he did not investigate or call any mitigating witnesses during his punishment hearing. Because appellant raised this issue in his motion for new trial, we will consider this as a challenge to the denial of his motion for new trial. Melancon v. State, 66 S.W.3d 375, 378 n. 3 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). We review a trial court's denial of a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). To demonstrate ineffective assistance of counsel, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App. 1995). In considering the first prong, we indulge a strong presumption that counsel's actions fell within the range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). To overcome this presumption, an allegation of ineffectiveness must be firmly demonstrated in the record. Id. At the hearing on his motion for new trial, appellant called eight friends and family members who stated that they would have testified at appellant's punishment hearing had they been asked to do so. Appellant's trial counsel testified that appellant had provided him with the names of some, but not all, of these possible witnesses. He further stated that he asked appellant on several occasions for the names of any witnesses that might be helpful to his case, and he did attempt to contact the witnesses that appellant identified. Appellant's counsel decided not to call any of the witnesses he contacted after evaluating their testimony and determining it would not be helpful. He articulated his reasons for making this determination. All of appellant's witnesses willing to testify either had knowledge of appellant's history of drug abuse and prior convictions, or they were aware of appellant's other negative characteristics. Trial counsel may reasonably determine that the potential benefit of mitigating witness testimony may be outweighed by the risk of negative counter-testimony. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Additionally, in this case, appellant's counsel did not try to identify any potential witnesses on his own because he thought appellant was the best source of potential character witnesses. Because appellant has failed to overcome the presumption that his trial counsel's actions fell within the range of reasonable professional conduct, we conclude the trial court did not err in overruling appellant's motion for new trial. Accordingly, we overrule appellant's first issue. In his second issue, appellant contends the trial court erred by ruling appellant's prior felony conviction would be admissible for impeachment purposes. See TEX. R. EVID. 609. Prior to the conclusion of the State's case in chief, the trial court conducted a hearing on appellant's motion in limine. Appellant sought to prevent the State from mentioning his prior conviction for possession of a controlled substance. The trial court did not rule on appellant's motion at that time, and there is no ruling reflected in the record. However, at appellant's hearing on his motion for new trial, the trial court iterated it had informed the State and appellant's counsel during a break in the trial that the prior conviction would be allowed into evidence. The State claims that appellant failed to secure an adverse ruling on the motion, and he, therefore, waived any error. See TEX. R. APP. P. 33.1(a)(2)(A). Even assuming appellant did obtain an adverse ruling, he still failed to preserve error because he did not testify. In order to preserve a claim of improper impeachment through prior convictions, a defendant must testify. Caballero v. State, 919 S.W.2d 919, 923 (Tex.App.-Houston [14 Dist.] 1996, pet. ref'd). Appellant has waived this claim. Accordingly, we overrule appellant's second issue. In his third issue, appellant contends if conduct of his counsel resulted in waiver of his second issue, then we should also find that this failure constituted ineffective assistance of counsel. We have found that appellant waived his second issue because he failed to testify, so we need not address whether appellant's trial counsel was ineffective for failing to obtain an adverse ruling. We overrule appellant's third issue. Having overruled appellant's issues, the judgment of the trial court is affirmed.