Opinion
NO. 09-11-00188-CR
05-23-2012
MICHAEL SHANE DUNN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 11-02-01232 CR
MEMORANDUM OPINION
A jury convicted appellant Michael Shane Dunn of possession of body armor by a felon and assessed punishment at fifty years of confinement. In two appellate issues, Dunn contends that trial counsel provided ineffective assistance by refusing to object to the State's motion to amend the indictment during trial and failing to object to allegedly inadmissible evidence. We affirm the trial court's judgment.
To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy a two-pronged test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a reasonable probability that but for his counsel's errors, the outcome would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Id.
Dunn must prove that there was no professional reason for specific acts or omissions of his counsel. See id. at 836. Furthermore, "[a]ny 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, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually insufficient to demonstrate that "counsel's representation was so deficient . . . as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833 (footnote omitted).
In his first issue, Dunn argues that counsel provided ineffective assistance by not objecting to the State's motion to amend the indictment during trial. The State sought to amend the indictment to allege that Dunn:
. . . did then and there, intentionally or knowingly possess metal or body armor after having been convicted of the felony offense of Felony Theft, on December 19, 2005, in cause number A05-553, in the 216th District Court of Kerr County, Texas.Dunn filed a motion for new trial, in which trial counsel stated that he was "surprised during trial when the State [sought] . . . a trial amendment because [it] proved the wrong felony conviction." In the motion, counsel also stated that he "conferred with his client and the client was desperate to keep the trial moving along . . . ." Counsel stated in the motion that he "should have requested a mistrial or a not guilty[,] but the Defendant was unaware of his legal rights and counsel did not have the opportunity to research this very rare issue." The record reflects that when the State moved to amend the indictment to reflect Dunn's prior theft offense rather than the unauthorized use of a motor vehicle offense originally reflected in the indictment, trial counsel stated that he did not object. Counsel explained to the trial court as follows:
I had an opportunity to speak with [Dunn], and I explained [that] the alternatives . . . were that the State could try to bring that judgment up and that they have two offenses, which our jury is already concerned with 25 to life issues. So, I wanted to keep the second judgment out of guilt/innocence. I also explained that I could ask for a mistrial because what they've introduced is prejudicial. And he's made it crystal clear that he does not want a mistrial.The appellate record also contains a note, written and signed by Dunn, which states, "I Michael Shane Dunn agree to the trial amendment & continue this trial[.]"
The record does not support Dunn's contention that counsel provided ineffective assistance by failing to object to the State's motion to amend the indictment. Rather, the record reflects that counsel acted pursuant to Dunn's instructions after counsel explained the issue and possible consequences. In addition, Dunn has not shown that the result of the proceeding would have been different if counsel had objected to the proposed amendment. If Dunn had objected to the proposed amendment, the remedy would have been either for the trial court to instruct the jury to disregard any references to the conviction for unauthorized use of a motor vehicle, or for Dunn to have requested a continuance, which would have resulted in the State introducing evidence of the unauthorized use of a motor vehicle conviction rather than the theft conviction. See Ex parte Brown, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995) (A trial court must rule out less drastic alternatives before declaring a mistrial.); see also Ex parte Varelas, 45 S.W.3d 627, 631-32 (Tex. Crim. App. 2001) (en banc) (A defendant is entitled to a limiting instruction concerning extraneous offense evidence.). We overrule issue one.
The unauthorized use of a motor vehicle conviction was mentioned when the indictment was read, as well as during the State's opening statement.
In his second issue, Dunn complains of counsel's failure to object to officers' testimony regarding alleged hearsay statements made by Dunn's former wife about Dunn's ownership of the body armor, as well as evidence of Dunn's prior conviction for theft. Dunn did not obtain a hearing to further elucidate the tactical reasons behind counsel's conduct during the trial or the possible impact of counsel's conduct on the outcome of the trial. The record is silent as to why counsel chose not to object to the alleged hearsay testimony or to the admission of evidence of Dunn's theft conviction, and we cannot presume that counsel's decision not to object constituted ineffective assistance. See Thompson, 9 S.W.3d at 813; see also Bone, 77 S.W.3d at 833. In addition, Dunn has not demonstrated that but for counsel's failure to object to the hearsay statements and the admission of his prior conviction for theft, the result of the proceeding would have been different. See Bone, 77 S.W.3d at 833. Accordingly, we overrule Dunn's second issue. Having overruled issues one and two, we affirm the trial court's judgment.
AFFIRMED.
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.