Opinion
No. 05-02-00903-CR, No. 05-02-00904-CR.
Opinion Filed June 10, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause Nos. 2-01-441, 2-01-442. AFFIRM.
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
Marion Wayne McEntire appeals his convictions for assault and retaliation. After the jury found appellant guilty, the trial court assessed punishment in each case at ten years' confinement, probated for ten years, and a $1500 fine. In two issues, appellant contends he did not receive the effective assistance of counsel at trial and trial counsel had a conflict of interest. We overrule appellant's issue and affirm the trial court's judgments. In his first issues, in both cases, appellant contends he did not receive the effective assistance of counsel at trial. In particular, he contends counsel failed to: (1) object to certain extraneous offense evidence; (2) properly investigate; (3) object to certain hearsay testimony; and (4) object to opinion testimony. To prevail on an ineffective assistance of counsel claim, appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The defendant must prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-814. In such cases, we need not speculate as to the basis for trial counsel's decisions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant's first complaint concerns trial counsel's failure to object to certain extraneous offense evidence. At the hearing on appellant's motion for new trial, counsel gave two reasons for his decision not to object to the complained-of evidence: (1) he believed much of the evidence was admissible under rule of evidence 404(b); and (2) he believed the evidence could be used to attack the complaining witness's credibility. Counsel explained that when he reviewed the prosecutor's file on appellant's case, he determined there were numerous complaints against appellant by the complaining witness. In his opinion, there were a lot of "nonsensical or contradictory" statements contained in the written complaints. Consequently, counsel decided to allow the jury to hear the details of these complaints to show the jury that the complaining witness could not be believed. For example, counsel used the details of a previous assault on the complaining witness to show the injuries she claimed were exaggerated and inconsistent with the police officer's observations. The complaining witness testified that appellant "was doing swinging kicks and kicked [her] in the chest and in the side of the face and knocked [her] down and — beat [her] savagely" and yet the police officer at the scene indicated there was no indication of any bruising, swelling, or bleeding. After reviewing the record, including the evidence offered at the motion for new trial hearing, we conclude appellant has failed to meet his burden to show there was no plausible professional reason for counsel's failure to object to the extraneous offense evidence. See Bone, 77 S.W.3d at 836. Failure to object to extraneous offense evidence may be a part of a reasonable trial strategy. See, e.g., Stafford v. State, 813 S.W.2d 503, 507 (Tex.Crim.App. 1991); Duren v. State, 87 S.W.3d 719, 733 (Tex.App.-Texarkana 2002, pet. stricken). The fact that another attorney, including appellant's appellate counsel, might have pursued a different course of action or tried the case differently does not necessarily indicate ineffective assistance of counsel. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983). To the extent appellant complains counsel failed to request a limiting instruction on the extraneous offense evidence, we reach a similar conclusion. Such a decision may be a reasonable trial tactic. See Garcia v. State, 887 S.W.2d 862, 881 (Tex.Crim.App. 1994) (trial counsel's decision not to request a limiting instruction to avoid reminding jury of incriminating evidence was reasonable trial strategy), overruled on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App. 2001). Here, counsel explained that he did not think limiting instructions are effective and he did not want to compromise his effort to appear open and honest. Thus, we cannot conclude that appellant has shown there is no plausible reason for counsel's decision not to request limiting instructions on the complained-of evidence. Appellant next complains counsel failed to properly investigate the case. Specifically, appellant contends counsel was ineffective because he did not interview the complaining witness's son. However, appellant has failed to show how such an interview would have changed the result of the proceeding. At the hearing on the motion for new trial, counsel explained that he spoke with the complaining witness on the telephone and he had access to the State's files. He was aware of the extraneous conduct offered by the State and counsel obtained copies of records from various agencies. The complaining witness had previously testified to the same facts. Thus, we fail to see how interviewing the son prior to trial would have impacted the result of the proceeding. Ordinarily, counsel should not blindly rely on the veracity either of his client's version of the facts or witness statements in the State's file. See McFarland v. State, 928 S.W.2d 482, 501 (Tex.Crim.App. 1996). However, the duty to investigate is not categorical. Id. Instead, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. (quoting Strickland, 466 U.S. at 691). A decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel's judgments. Id. In any event, we will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced, and there is a reasonable probability that, but for counsel's failure to advance the defense, the result of the proceeding would have been different. Id. This is not such a case. Consequently, we cannot conclude appellant has shown counsel was ineffective by failing to adequately prepare. Appellant also contends counsel was ineffective for failing to object to certain hearsay evidence. Under this portion of his argument, appellant merely lists six statements counsel permitted into evidence. Appellant does not provide any discussion or authority under this portion of his argument. Consequently, we question whether appellant's briefing is adequate to preserve error for our review. See Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App. 1995) (failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex.Crim.App. 1992) (same). Further, of the six complained-of statements the record contains trial counsel's reasoning on only one of the statements. Counsel explained why he allowed testimony to be admitted about appellant's threat to put someone out in the woods, tie them up, and slit open their intestines to allow the animals to feed on them. According to counsel, the testimony was so "bizarre" he did not think any rational juror would believe it, and it would act to discredit the complaining witness. As we have previously discussed regarding the extraneous offense evidence, although questionable, we cannot conclude counsel's strategy of allowing the jury to hear all of the details of the conduct between these two parties was so unreasonable as to deny appellant the effective assistance of counsel. Because the record is silent with respect to counsel's reasons for failing to object to the other five complained-of statements, we cannot conclude appellant has overcome the strong presumption of reasonable assistance with respect to these complaints. See Thompson, 9 S.W.3d at 813-814. Finally, appellant contends counsel failed to object to impermissible opinion testimony. Specifically, appellant contends counsel should have objected to testimony by employees of the district attorney's office that (1) the complaining witness was "a beaten down woman;" (2) appellant "had done some severe damage to her emotionally and physically;" and (3) "someone beat the hell out of [the complaining witness]." Because this testimony was based on personal observations of the complaining witness's mental and physical state at the time of interviews and the opinions were rationally based on that knowledge, the complained-of statements were permissible lay opinion testimony. See Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App. 1997). Failure to object to admissible evidence is not ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). In sum, a defendant in a criminal case is entitled to reasonably effective assistance of counsel. This standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel or counsel whose competency is judged by hindsight. Rather, it guarantees counsel reasonably likely to render and rendering reasonably effective assistance. Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986). We review the totality of the representation to determine if appellant was denied a fair trial. See McFarland, 928 S.W.2d at 500. We have examined the entire record to determine counsel's effectiveness. Counsel properly and thoroughly examined witnesses, raised various objections, and argued on appellant's behalf. While counsel's strategy of allowing all of the details of the troubled relationship between appellant and the complaining witness was not without risk, nevertheless, we cannot conclude it denied appellant a fair trial. Counsel cannot be faulted for the strength of the State's case or the lack of defensive evidence. We overrule appellant's first issue. In his second issue, appellant contends we must reverse his conviction because of counsel's conflict of interest. According to appellant, counsel should have withdrawn from the case when he became aware he was a fact witness in the case. Because appellant's complaint does not involve an "actual conflict," i.e., a situation where counsel was required to make a choice between advancing his client's interest in a fair trial or advancing other interests to the detriment of his client's interests, the Strickland standard of review applies. See Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Thus, we need not determine whether counsel's failure to withdraw so he could testify as a fact witness fell below objective standards of reasonableness because, even assuming it did, we fail to see how the result of the proceeding would have been different. Although appellant contends counsel's testimony that the complaining witness told him she might have had a blackout on the night of the alleged assault was "critical" to the issue of the complaining witness's credibility, we disagree. The complaining witness admitted at trial that she lied to counsel during the telephone conversation as well as to her friends, family, boss, and co-workers about how she was injured. Under these circumstances, we cannot conclude appellant has met his burden to show that but for counsel's failure to testify, the results of the proceeding would have been different. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgments.
Although appellant filed a brief in each case, the issues raised are identical. Thus, we address the cases together.