Opinion
Nos. 05-03-00997-CR, 05-03-00998-CR.
Opinion Filed March 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F02-51630-Jm and F03-00058-IM. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
Charles Anthony Ellinberg appeals his convictions for aggravated robbery and unlawful possession of metal or body armor by a felon. See Tex. Pen. Code Ann. §§ 29.03, 46.041 (Vernon 2003). In three points of error, appellant complains about his legal representation and the admission of certain evidence. We affirm. Background Appellant, a convicted felon, was arrested after Dallas police officer Benjamin Bonya, responding to an emergency call, witnessed appellant strike the complainant and "knock" her to the ground. According to the complainant, appellant had just robbed her and threatened her with a gun. After arresting appellant, Bonya searched appellant's car, which was nearby, and found the complainant's property and a bulletproof vest. A second officer, Julius Mundt, found the gun in appellant's back pocket. A jury subsequently found appellant guilty of unlawful possession of metal or body armor, of being a convicted felon in possession of the bulletproof vest, and aggravated robbery. The jury assessed punishment at ten years confinement and a $10,000 fine in the possession case and assessed an enhanced punishment of forty-five years in the aggravated robbery case. Ineffective Assistance of Counsel In his first point of error, appellant asserts he was denied effective assistance of counsel. Specifically, appellant argues the search of his car was unconstitutional and that "any reasonable defense attorney would have filed a motion to suppress and objected to the admission of the evidence." Appellant further argues a reasonable probability existed that, but for counsel's unprofessional errors, the results of both proceedings would have been different. We reject appellant's contentions. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). In reviewing an ineffective assistance of counsel claim, we indulge a strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Generally, before we can conclude counsel's performance was deficient, we must have a record showing the reasons for counsel's actions. Id. at 813-14; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994). Because the trial record is directed to the issues of guilt or innocence and punishment, a record focused specifically on the conduct of counsel, such as a record of a hearing on a motion for new trial in which ineffective assistance of counsel was raised, is generally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Only when "counsel's ineffectiveness is so apparent from the record" will an appellant prevail on direct appeal without a motion for new trial asserting an ineffective assistance of counsel claim and a hearing on that motion. Freeman v. State, 125 S.W.3d 505, 505 (Tex.Crim.App. 2003); Kemp, 892 S.W.2d at 115. Here, the record is silent as to counsel's strategy and counsel's ineffectiveness is not "so apparent from the record." See Freeman, 125 S.W.3d at 505 (declining to find ineffectiveness apparent from the record where counsel failed to move to recuse allegedly impartial trial judge). Moreover, although appellant filed a motion for new trial, he did not allege in that motion that his counsel was ineffective and did not otherwise develop a record explaining why counsel failed to file a motion to suppress and object to the admission of the items removed from his car. Given the record before us, we cannot conclude counsel was deficient. Thompson, 9 S.W.3d at 814 (silent record insufficient to show counsel's performance deficient for failing to object to admission of inadmissible hearsay); Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd) (silent record insufficient to show counsel's performance deficient for failing to file motion to suppress). We overrule appellant's first point of error. Admission of Evidence In his second and third points of error, appellant complains about the admission of certain evidence. Specifically, in his second point, appellant asserts the court erred in overruling his "403 and 404(b) objections" to Mundt's testimony during the guilt-innocence phase that appellant stated "there [would be] an all-out war, a lot of killing" when he got out of jail and that he would specifically kill the complainant. See Tex. R. Evid. 403 (allowing for exclusion of unfairly prejudicial evidence), 404(b) (governing admission of extraneous offense evidence). In his third point, appellant asserts the court erred in allowing punishment testimony concerning the events leading to his prior felony conviction because it was not relevant. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004) (governing admission of evidence of prior criminal record in punishment phase); Tex. R. Evid. 403. Again, we reject both contentions. We review rulings on the admissibility of evidence under an abuse of discretion standard. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991); Davis v. State, 68 S.W.3d 273, 282 (Tex. App.-Dallas 2002, pet. ref'd). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because the erroneous admission of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such evidence. See King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App. 1997); Phelps v. State, 999 S.W.2d 512, 520 (Tex. App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record and will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). Of course, to preserve error, the objection at trial must comport with the objection on appeal. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003). Turning to appellant's complaint about the admission of Mundt's testimony, we need not decide whether the court abused its discretion in admitting the complained-of statements because we conclude any error was harmless. The evidence supporting the verdict includes the complainant's detailed testimony that appellant approached her twice, threatened to shoot her if she "ran away," demanded her money, took earrings she had in her purse, demanded she undress, and then struck her and "knocked" her to the ground. This testimony was corroborated in large part by a witness, who observed appellant threatening the complainant with a gun, and Bonya, who, as stated, observed appellant striking the complainant. In addition, there was testimony that appellant admitted the bulletproof vest was his. In short, Mundt's testimony concerning appellant's plans when he got out of jail was minimal compared to the testimony concerning the charged offenses. So, too, was the prosecutor's reference to the complained-of testimony at closing. Given the record before us, we conclude any error from the admission of the statements concerning appellant's plans when he got out of jail did not influence the jury or had but a slight effect. We overrule appellant's second point of error. We also overrule appellant's complaint in his third point that the court erred in allowing testimony concerning the events leading to his prior felony conviction. At trial, appellant objected to this testimony on the ground the prosecutor was "trying to go behind the judgment and sentence." This objection, however, does not comport with appellant's complaint on appeal that the testimony was not relevant. Appellant has failed to preserve error. See Guevara, 97 S.W.3d at 582. We affirm the trial court's judgments.