Opinion
Nos. 05-04-01165-CR, 05-04-01166-CR
Opinion Filed June 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80446-03 199-80447-03. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
A jury convicted David Paul Foster of assaulting two Collin County sheriff's deputies and assessed punishment at concurrent ten-year prison sentences. In three issues, appellant complains he was denied effective assistance of counsel at guilt-innocence and punishment. We affirm. Briefly, the evidence showed appellant attacked deputies Kyle Nevil and David Richardson when they approached him as he sat nude, draped only in a shower curtain, in a chair 500 feet from an elementary school one morning. The deputies, assisted by two bystanders, were eventually able gain control of appellant and arrest him. At trial, appellant's defense was that he was insane at the time of the offense. On appeal, appellant complains trial counsel rendered ineffective assistance by (1) failing to object at punishment when the prosecutor's cross-examination violated his right to jury trial and to plead not guilty, (2) failing to object at punishment when the prosecutor questioned him regarding the amount of time he would have to spend in prison on a ten-year sentence, and (3) failing to object at guilt-innocence to extraneous offense evidence when the State failed to give notice of its intent to use the evidence. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 19860. To obtain reversal on the grounds of ineffective assistance of counsel, appellant must show that (1) trial counsel performance was deficient in that it fell below the prevailing norms and (2) the deficiency prejudiced appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Id. at 101. The record on direct appeal is in almost all cases inadequate to show counsel's conduct fell below an objectively reasonable standard of performance and the better course is to pursue the claim in habeas proceedings. Id. In this case, appellant filed a motion for new trial but did not raise any complaint of ineffective assistance of counsel. The motion was ultimately overruled by operation of law without a hearing. Because the record provides no explanation for counsel's action, and because we can "imagine" a strategic motive in counsel's failure to object, we conclude appellant failed to overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Appellant has not met the first prong of Strickland because he has not shown counsel's performance was deficient. We therefore resolve all issues against him. Our decision regarding whether the record supports appellant's claim, however, should not be interpreted as acceptance or approval of the conduct of the prosecutor, Sharon Curtis. Briefly, one of appellant's complaints involves the following exchange at the punishment phase:
[PROSECUTOR]: Okay. Now you're remorseful? In guilt — innocence you didn't seem the least bit remorseful, but now, sir, you're remorseful?
[APPELLANT]: When — when — when was I not remorseful.
[PROSECUTOR]: Well, in the guilt-innocence phase you didn't do it?
[APPELLANT]: You were asking me these — these questions just back and forth purposely to — to — to do that, I know, you know. I'm only human, you know. I'm only human and —
[PROSECUTOR]: Yes, sir. And in the guilt-innocence phase you remember you pled not guilty?
[APPELLANT]: I didn't —
[PROSECUTOR]: And you said — not only y'all said you were insane at the time —
[APPELLANT]: I didn't —
[PROSECUTOR]: — but you also had that added element that you didn't do it anyway. Remember that?
[APPELLANT]: Yes, ma'am. I never personally claimed to be insane. This was the — the lawyers. I told my lawyer that I had had mental problems. I never said, hey, that I'm insane or this or that or everything. And I come here today because I truly don't know whether I was guilty or not. So I — you know, that's — I figured that's why we have judges and juries, for them to decide.
[PROSECUTOR]: It's a big sham. That's exactly what this trial was about, a big sham, wasn't it?
[APPELLANT]: Well, it surely wasn't — it wasn't my sham.
[PROSECUTOR]: Let me just say — may I approach, Your Honor?
[APPELLANT]: I didn't —
[PROSECUTOR]: May I approach?
[TRIAL COURT]: Yes, ma'am.
[PROSECUTOR]: Let me just shake your hand, brother. I appreciate your honesty on that because it was a sham.The prosecutor's conduct was more befitting an actress in a television courtroom drama than an officer of the court prosecuting a real case against a real defendant who faced a real loss of liberty. We admonish Ms. Curtis that such courtroom theatrics are wholly inappropriate and will not be condoned by this Court. We affirm the trial court's judgments.