Opinion
No. 05-08-01351-CR
Opinion Filed July 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 196th Judicial District Court, Hunt County, Texas, Trial Court Cause No. 24,770.
Before Justices BRIDGES, O'NEILL, and MURPHY.
OPINION
Appellant appeals his conviction for felony driving while intoxicated. In two points of error, appellant contends (1) the trial court erred in not charging the jury regarding the legal effect of his stipulation to his two prior DWI convictions, and (2) he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for felony driving while intoxicated. Specifically, the indictment alleged appellant committed the offense of DWI having twice before been convicted of the offense. See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon 2003). At trial, appellant stipulated to the two prior convictions and the stipulation was admitted into evidence. Appellant did not request a limiting instruction at the time the stipulation was admitted and none was given. The application paragraph of the jury charge informed the jury that it could find appellant guilty only if it found, beyond a reasonable doubt, that appellant committed the charged DWI offense and also that appellant had twice before been convicted of DWI. The charge made no reference to appellant's stipulation and did not inform the jury not to use the stipulation as evidence that appellant committed the charged DWI offense. During the charge conference, the State indicated that the charge it had drafted included an "extraneous act" instruction but that the instruction was only required if appellant requested it. Appellant responded that he did not want the instruction and it was removed. The record does not reveal the nature of the referenced extraneous act instruction. Appellant had no other objections to the charge. In his first point of error, appellant contends the trial court erred in failing to properly charge the jury about the legal effect of his stipulation. A jury charge must distinctly set forth the law applicable to the case and set out the essential elements of the offense. Martin v. State, 200 S.W.3d 635, 641 (Tex.Crim.App. 2006). In Martin v. State, the court of criminal appeals held that this requirement includes the law pertaining to the jurisdictional elements of a felony DWI offense. Id. The court explained that, although a defendant's stipulation to DWI enhancements obviates any evidentiary proof of the element, the jury still must be instructed on all the law concerning a felony DWI offense. Id. Specifically, the jury charge should include (1) some reference to the jurisdictional element of two prior DWI convictions, and (2) some reference to the defendant's stipulation and its legal effect of establishing the jurisdictional element. Id. at 640-41. The court noted that there is no one correct manner to instruct the jury and that the court "may give whatever other limiting instructions are appropriate under the circumstances." Id. at 639. In this case, the application paragraph of the jury charge required the jury to find appellant had been "twice before convicted" of DWI to find appellant guilty. The charge thus referenced the DWI priors as required by Martin. See id. at 640-41. The charge did not, however, reference appellant's stipulation or instruct the jury that the jurisdictional element of two prior DWI convictions had been established by the stipulation. Thus, the charge contained error. See id. at 641. The charge also failed to instruct the jury it could not consider the priors as proof of guilt in this case. According to appellant, such a limiting instruction is required in all cases regardless of request. Generally, limiting instructions need not be included in the charge when a defendant fails to request an instruction at the time offensive evidence is admitted. See Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App. 2001). Martin did not expressly hold that a limiting instruction regarding a stipulation is automatically necessary in all cases. Martin did state that at least one approved method of charging the jury on a stipulation "would include" a limiting instruction. See Martin, 200 S.W.3d at 639. For purposes of this opinion, we will assume the trial court erred in not giving such a limiting instruction. Because appellant did not object to the charge error, we reverse only if the error was "so egregious and created such harm that appellant was denied a fair trial." Id. To determine "egregious harm," a reviewing court examines "the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole." Id. The appellant must have suffered actual, rather than theoretical, harm. Id. Errors that result in egregious harm are those that affect ''the very basis of the case," "deprive the defendant of a valuable right," or ''vitally affect a defensive theory." Id. at 462. Under Martin, the jury charge should have included some reference to the stipulation and its "legal effect of establishing the jurisdictional element." Martin, 200 S.W.3d 635, 641 (Tex.Crim.App. 2006). The harm flowing from the error in this case consists of the danger the jury might use the prior DWI convictions as evidence of guilt for the charged DWI offense. However, appellant arguably also could have benefitted from the defect in the charge. Specifically, the trial court's failure to instruct on the stipulation both reduced the number of references to appellant's prior convictions, but also permitted the jury to acquit appellant if the jury was not convinced beyond a reasonable doubt about the prior convictions. To the extent the trial court should have also included a limiting instruction, we still cannot conclude the error was egregious. The stipulation was admissible and properly in evidence for the jury's review. Nothing in the testimony presented or the arguments of counsel invited the jury to use the stipulation for an improper purpose. Further, the evidence was clearly sufficient to support appellant's conviction without improper use of the stipulation. Absent some indication the jury used the stipulation in an improper manner, we conclude any error in the charge was not "so egregious and created such harm that appellant was denied a fair trial." We overrule appellant's first point of error. In his second point of error, appellant contends he received ineffective assistance of counsel because counsel failed to object to the above charge error. To prevail on an ineffective assistance of counsel claim, an appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Moreover, without evidence to the contrary, we will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111. Trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). Appellant did not file a motion for new trial based on ineffective assistance. The record thus does not provide an explanation of counsel's actions. Nor can we conclude there is no possible basis in strategy or tactics for counsel's actions. As noted above, the charge, as written, arguably could have benefitted appellant. Thus, appellant has not established deficient performance. Further, we cannot conclude a reasonable probability exists the result of the proceeding would have been different but for the alleged ineffectiveness. We have previously determined that the charge error was not "so egregious and created such harm that appellant was denied a fair trial." Similarly, we conclude there is not a reasonably probability the jury would have acquitted appellant if they had been charged on the stipulation and given a limiting instructions. We overrule appellant's second point of error. We affirm the trial court's judgment.