Opinion
No. 05-04-01386-CR
Opinion issued December 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-82592-03. Affirmed.
OPINION
Appellant Derrick Earl Jenkins appeals his conviction for the state jail felony offense of evading arrest or detention with a motor vehicle, as charged in the indictment. See Tex. Pen. Code Ann. § 38.04(a), (b)(1) (Vernon 2003). After the jury found appellant guilty and made an affirmative finding that appellant used or exhibited a deadly weapon during the offense, the trial court assessed appellant's punishment at ten years' confinement in the Texas Department of Criminal Justice-Institutional Division. See id. § 12.35(c)(1) (state jail felony punishable as third-degree felon if deadly weapon used or exhibited during commission of offense). In his sole issue on appeal, appellant claims he was denied his Sixth Amendment right to counsel. We affirm the trial court's judgment.
The State filed a pretrial "Notice of Intent to Use Prior Convictions" to enhance the punishment range from a state jail felony to a third-degree felony. See Tex. Pen. Code Ann. § 38.04(b)(2)(A). No evidence, however, was presented at trial to show appellant had a previous conviction for evading arrest or detention under section 38.04. The State also filed a "Notice of Intent to Seek a Deadly Weapon Finding." The jury made an affirmative deadly weapon finding, and the judgment contains the deadly weapon finding.
Background
In September 2003, a loss prevention officer (hereinafter LPO) at Nordstrom's Rack saw appellant inside the store and recognized him as having shoplifted in the same store in April 2003, without being apprehended. When the LPO and appellant made eye contact, appellant left the store. The LPO continued to observe appellant as he moved his car to another space in the parking lot, got out, and went into a Marshall's store. The LPO called the police, reported the April 2003 shoplifting, gave the police a description of the vehicle appellant was driving, and told the police where the vehicle was. The police determined the vehicle was stolen. Additional police units were called, and surveillance was set up on the stolen vehicle. Several police units, both marked and unmarked, arrived on the scene. Appellant eventually returned to the vehicle, got in, and began to drive away. As he did so, all of the police units, with their emergency equipment activated, "close[d] in" on the stolen vehicle. A marked police unit driven by Officer Ron Flanagan pulled in front of the stolen vehicle. Flanagan got out with his police weapon drawn. Using his vehicle as cover, Flanagan pointed his weapon at appellant and ordered him to get out of the vehicle. Flanagan saw appellant's hand on the gearshift as appellant put the vehicle in reverse, paused for a second or two, and then began to back up. At about the same time, another police unit driven by Officer Scott Kermes pulled in behind the stolen vehicle and parked. When Kermes looked up, he saw the stolen vehicle's reverse lights on. The stolen vehicle hit the front of his police vehicle, rolled up onto the hood, and got hung up. The reverse lights went off and appellant, unsuccessfully, attempted to go forward. Kermes got out of his vehicle, ran toward Officer J. Babb and then toward appellant. Kermes arrested appellant. A video camera recorded the events and the video was shown to the jury.Standard of Review
The appellate standard of review for an ineffective assistance claim is well established. We utilize the two-part test established by Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas courts in Hernandez v. State, 726 S.W. 2d 53, 57 (Tex.Crim.App. 1986). That test requires an appellate court to determine whether counsel's performance was deficient under prevailing professional norms and whether, but for such deficient performance, the result would probably have been different. See Strickland, 466 U.S. at 687-88, 692. Appellant has the burden of proving by a preponderance of the evidence both deficiency and prejudice. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). Such proof must be firmly founded in the appellate record. See Thompson v. State, 9 S.W.3d 808, 813-14, (Tex.Crim.App. 1999). Generally, the record on direct appeal is insufficient. See id. nn. 5-6. The better vehicle for presenting an ineffective assistance claim is a habeas corpus proceeding in which a post-trial evidentiary record is made. See Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex.Crim.App. 2002). We indulge a strong presumption that trial counsel's actions fell within the wide range of reasonableness. See Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 772 (Tex.Crim.App. 1994). To prevail on a claim of ineffective assistance, appellant must rebut that presumption. See Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 772. Without a record containing evidence of trial counsel's reasoning behind his actions, an appellate court cannot conclude that counsel's performance was deficient. See Bone, 77 S.W.3d at 833.Analysis
Appellant claims trial counsel was ineffective by failing to object to the abstract portion of the charge which reads, "A person shall be guilty of a felony if the actor uses a vehicle while the actor is in flight and the actor has been previously convicted of evading arrest." (emphasis added). Appellant contends trial counsel's failure to object harmed appellant because it failed to preserve error for appeal and the instruction amounted to an improper comment on the weight of the evidence by the trial judge that benefitted the State and prejudiced appellant by denying him a fair and impartial trial. See Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). Citing Jackson v. State, 766 S.W.2d 504 (Tex.Crim.App. 1985), vacated, 475 U.S. 1114(1986), jdg. set aside, 766 S.W.2d 518 (Tex.Crim.App. 1988), appellant contends this sole omission constitutes ineffective assistance of counsel. Alternatively, appellant contends trial counsel's performance, as a whole, was deficient, compelling a finding of ineffective assistance. Appellant points to the following acts or omissions of trial counsel perceived by him to be errors: counsel's admission of his legal inexperience (less than one year) and his nervousness; cursory voir dire examination; the misstatement of the number of peremptory strikes; the mishandling of discovery in a way that failed to exclude the video; reference to the April 2003 shoplifting; and a weak closing argument. The State responds the appellate record is insufficient to show that trial counsel's performance was deficient or that appellant was prejudiced by counsel's failure to object to the trial court's jury instruction in the abstract portion of the jury charge. A. Failure to Object We first note the complained-of language to which trial counsel did not object, and about which appellant complains, appears only in the abstract portion of the charge. The application paragraph did not contain the offending language. The application paragraph reads, in relevant part:NOW, if you find from the evidence beyond a reasonable doubt that . . . [appellant] did then and there intentionally flee, using a vehicle, from J. Babb, knowing J. Babb was a peace officer who was attempting to lawfully arrest and detain the defendant, then you will find the defendant guilty as charged in the indictment.Although complaining that counsel failed to preserve error by not objecting, appellant recognizes in his brief that the complained-of jury instruction was "probably inadvertently made." The application paragraph correctly stated the law and made no reference to a previous conviction. Therefore, even if counsel had objected, the error would not have been reversible. See Plata v. State, 926 S.W.2d 300, 304 (Tex.Crim.App. 1996) (jury charge adequate if it contains application paragraph specifying all conditions to be met before conviction authorized), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). Appellant cites no authority in support of his conclusion that the erroneous jury instruction constituted a comment on the weight of the evidence. An instruction commenting on the elements of the alleged offense or assuming the truth of a controverted issue improperly comments on the weight of the evidence. See Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986). There was neither an allegation in the indictment nor evidence presented to the jury that appellant had a previous conviction. The complained-of abstract statement of the law neither implied that appellant had a previous conviction nor commented on the credibility of any witness. The challenged language was not an incorrect statement of the law in the abstract-it was simply a correct statement of law that was irrelevant to the case under the evidence presented to the jury. Appellant has failed to show he was prejudiced by trial counsel's failure to object to the complained-of language. Because any error regarding the complained-of language in the charge would not have been reversible, we cannot conclude trial counsel's failure to object constituted ineffective assistance. See Miniel v. State, 831 S.W.2d 310, 324-25 (Tex.Crim.App. 1992). B. Counsel's Performance as a Whole As for appellant's claim that trial counsel's performance as a whole was deficient, appellant has failed to present a factual record sufficient to allow this court to determine his claim. See Bone, 77 S.W.3d at 833. Although appellant filed a motion for new trial, it did not raise ineffective assistance of counsel. The motion was denied without hearing; therefore, there is no post-trial evidentiary record, and we have only the trial record on which to evaluate appellant's claim. Without a fully developed post-trial evidentiary record, appellant cannot rebut the strong presumption that trial counsel acted within the range of reasonableness or as a matter of trial strategy. Appellant is simply "Monday morning quarterbacking." However, the fact that another attorney, including appellate counsel, would have pursued a different course of action does not necessarily indicate that trial counsel was ineffective. See Miniel, 831 S.W.2d at 325. Having reviewed the record under the proper standard, we conclude appellant has failed to meet his burden to show either that trial counsel's performance was deficient or that the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-88, 692. We overrule appellant's point of error. We affirm the trial court's judgment.