Opinion
No. 05-02-00476-CR.
Opinion Filed June 10, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F01-01927-PH. AFFIRMED.
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
Michael Paul Jones appeals his conviction, after a jury trial, of aggravated assault enhanced by two prior felonies. After the jury found appellant guilty he accepted the prosecutor's recommendation for sentencing in lieu of a contested punishment hearing, and the court sentenced him to 25 years' confinement. In a single issue on appeal, appellant claims he was deprived of the effective assistance of counsel. For the reasons that follow, we resolve appellant's issue against him and affirm the trial court's judgment. Factual and Procedural Background Appellant's conviction arises out of an incident in which he cut his friend's hand with a knife, thereby severing two tendons. Appellant and his friend, the victim, did yard work together on the day of the offense. When they returned to appellant's house they found a man named Lee on appellant's porch. Appellant had warned Lee in the past not to trespass on his property. Appellant became angry and told Lee to leave. The victim testified that appellant hit Lee on the knee with a hammer. When the victim pulled the hammer away from appellant, appellant went into the house and returned with a knife. According to the victim, the appellant threatened him with the knife. Then, in the course of a struggle between appellant and the victim, the victim was cut. Appellant claimed the injury was accidental. According to the appellant, he brought the knife out of the house in order to untangle a cord to which his dog was tied. He claims that the victim attacked him while he was working on the cord. Appellant testified that he fought the victim off several times and the victim grabbed his arm. While he was trying to free himself from the victim's grip on his arm, the victim was accidentally cut with the knife. At trial, during cross-examination of the victim, appellant's counsel established that the victim had previously observed appellant in a state of anger about people trespassing on his property. On re-direct the prosecutor questioned the victim regarding whether he had ever before seen appellant pull out a knife. The victim testified that, in the past, when appellant was angry, appellant had pulled a knife on him and threatened him. Appellant claims that his counsel's failure to object to this testimony allowed the State to establish that the attack was not an accident and denied him the effective assistance of counsel. Standard of Review Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999) To prevail on an ineffective assistance of counsel claim, appellant must show: (1) counsel's representation was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813 citing Strickland, 466 U.S. at 689. We do not judge trial counsel's performance with the benefit of hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992). Nor do we speculate on strategy in the absence of a record of the reasoning behind counsel's actions. See Weeks v. State, 894 S.W.2d 390, 392 (Tex.App.-Dallas 1994, no pet.) citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In Weeks, this Court reviewed a complaint about counsel's failure to object to certain testimony. We held that " Jackson prohibits our speculating on whether we could justify trial counsel's actions." Weeks, 894 S.W.2d at 392. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In most instances, a silent record that provides no explanation for counsel's actions or inactions will not overcome the strong presumption of reasonable assistance. Id. at 814. Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. Id. at 813. An appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions; i.e., whether those actions were of strategic design or the result of negligent conduct. Thompson, 9 S.W.3d at 814. Only when the record clearly confirms that no reasonable trial counsel could have made such trial decisions is it not speculation to hold counsel ineffective. See Weeks, 894 S.W.2d at 392. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Applicable Law Respecting Evidentiary Issue Under rule 404(b) of the Texas rules of evidence, extraneous bad acts are not admissible to show the defendant's bad character in order to show action in conformity therewith. Tex.R.Evid. 404(b). However, such acts may be admissible for other purposes, such as proof of motive, intent, or absence of mistake or accident. Id.; See also Lemmons v. State, 75 S.W.3d 513, 523 (Tex.App.-San Antonio 2002, pet. ref'd); citing Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1991). The extraneous acts must possess the requisite similarities, such as proximity in time or place or common mode of the acts to render them admissible on the issue of intent. See Sewell v. State, 629 S.W.2d 42, 46 (Tex.Crim.App. 1982). In Sewell, the court held that extraneous threats were sufficiently similar to the ones forming the basis of the charge of retaliation so as to be admissible to show appellant had the requisite mental state and had made the threats intentionally. Id. Further, when a defendant claims self-defense or accident, such acts may be admissible to defeat that claim. See Lemmons, 75 S.W.3d at 523. In Lemmons, the court held that the defendant's extraneous robbery offense was admissible to rebut his claim of self-defense. Id. Application of Law to Facts Appellant complains of his counsel's failure to object to the victim's testimony regarding other incidents in which appellant had threatened him or others with a knife. In support of that complaint, appellant identifies specific questions asked by the State, to which no objection was made, which elicited the following testimony from the victim: (1) that he had seen appellant pull out a knife before; (2) that appellant had threatened him with a knife before; (3) that appellant had never before cut him; and (4) that in the instance when appellant had pulled out a knife, appellant was angry. The State reminded the jury of this testimony in its final argument. Appellant argues that the State used this testimony of extraneous acts to destroy his claim that he injured the victim accidentally when he was trying to free himself from the victim's grip on his arm. Although appellant has identified specific questions described above that he argues show ineffective assistance of his counsel, the record contains no evidence of trial counsel's rationale in not objecting to the testimony. Appellant argues that the failure to object to the testimony of extraneous acts was inexcusable and so egregious that in and of itself it constituted ineffective assistance of counsel. The State argues that there are a number of possible strategies which could support counsel's actions. Counsel may have reasoned that the victim's testimony regarding appellant's extraneous acts of exhibiting a knife might have been admissible to show appellant's intent. See Sewell v. State, 629 S.W.2d at 46. Thus, trial counsel could have concluded that the evidence would have been admissible and that any objection was fruitless. See Broderick v. State, 35 S.W.3d 67, 79 (Tex.App.-Texarkana 2000, pet. ref'd). Because appellant argued that the injury was the result of an accident, such acts might have been admissible as being relevant to appellant's intent and the lack of accident. Tex.R.Evid. 404(b). Once the defendant claims accident, mistake, lack of intent, etc., intent can no longer be inferred from other uncontested direct evidence, and the State is allowed to prove intent through evidence of other crimes, wrongs, or acts. Johnson v. State, 932 S.W.2d 296, 302 (Tex.App.-Austin 1996, pet. ref'd) citing Montgomery, 810 S.W.2d at 375. In any case, the failure to object to admissible evidence does not render counsel's assistance ineffective. See Moore v. State, 4 S.W.3d 269, 275 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Ryan v. State, 937 S.W.2d 93, 101 (Tex.App.-Beaumont 1996, pet. ref'd). In reviewing case law submitted by appellant, we note that appellant relies on ineffective assistance of counsel cases in which the courts held that the objectionable testimony would not have been admissible. See, e.g. Ruth v. State, 522 S.W.2d 517, 518 (Tex.Crim.App. 1975). However, several of these cases listed numerous instances of objectionable and improper testimony. See, e.g., Weathersby v. State, 627 S.W.2d 729, 730 (Tex.Crim.App. 1982); Cude v. State, 588 S.W.2d 895, 897 (Tex.Crim.App. 1979). The cited cases are distinguishable from this case and do not apply since appellant complains of relatively brief testimony which was arguably admissible. Appellant has failed to rebut the presumption that trial counsel's decision not to object was reasonable. Therefore, appellant has failed to make the required showing of deficient performance in order to meet the first requirement of the ineffective assistance of counsel test. See Thompson, 9 S.W.3d at 814. Appellant's single issue on appeal is decided adversely to him. We affirm the trial court's judgment.