No. 05-09-00870-CR
Opinion issued July 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F08-63554-Y.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice MORRIS.
A jury convicted Brian Anthony McKinney of assault on a member of his household enhanced by a previous family violence assault conviction. He complains on appeal that the trial court abused its discretion in permitting the State to impeach him with evidence of remote convictions and that he received ineffective assistance of counsel. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Appellant's former live-in girlfriend, Tiffany Moon, testified that in the early hours of a December morning, appellant hallucinated that Moon was giving oral sex to someone in front of him. He also hallucinated that she and his ex-wife were plotting to kill him. He hallucinated that the ex-wife was hiding in their closet. Appellant threatened to chop Moon into small pieces and throw her into a lake so no one could identify her body. He threatened that if she ever called the police to report his behavior, he would catch her and kill her. He made Moon believe he had a gun. He choked Moon and pushed her down so hard that she heard her neck crack in three places. Appellant gave Moon thirty seconds to call the person he believed he had seen her with or he said he would kill her. After thirty seconds passed, he gestured as though he was taking a gun from his pants, then he put his knuckle to Moon's head and made a loud noise like he was firing a gun. He took her phone from her and hid it. He told her that if she wanted to keep a roof over her and her son's head, she needed to perform oral sex on him, so she complied. Afterward, he kicked Moon and her three-year-old son out of the apartment into freezing temperatures outside. He intermittently opened the door to yell "stupid things" at Moon then closed and locked the door again. Moon was scared. She thought appellant was going to kill her. She said that appellant's behavior that night was violent, insane, and very abnormal. She believed that if the police had not arrived approximately ten minutes after appellant forced her outside, the violence against her would have continued. When the police arrived, appellant acted as if nothing had happened. Moon recalled he was "trying to be all nice and polite" to the officers "like he had something to hide." Moon testified that she is "[v]ery much" afraid of appellant. She testified that both she and appellant have mental problems. She admitted they both had also been using crack cocaine the night of the offense. Dallas police officer Russell Crocker testified that when he reported to the scene, he was talking to Moon when appellant approached him "in an excited stated." Appellant "was acting very strange, fast speaking, sweating a lot, and just something didn't seem right." Appellant told Crocker that he caught Moon with another man "and he choked her, and put her out of the house." Crocker observed redness and swelling around Moon's neck area in addition to a couple of abrasions. Crocker did not see any injuries on appellant. Appellant testified in his own defense. He denied choking Moon. When asked if he caused her physical harm or injury, he replied, Sir, upon the evening that we had the altercation, I do recall grabbing her by the hand because she was leaving the house with the keys. And I taken [sic] the key out of her hand and said "get out of the house." That's what I done. All this choking and grabbing her by the throat and all this I did not do.
He continued, "If that's what you call bodily injury to her hand or to her arm, then I did that. Other than that, I didn't do anything of the nature." Moon, however, claimed she never had her keys during the offense. According to her, appellant had used her keys earlier when he had borrowed her car and had not returned them. Appellant stated that the altercation between Moon and him was the result of his discovering that the father of Moon's child had been at his apartment. He denied coercing Moon into performing oral sex on him. He denied threatening to kill her. He also denied telling police that he had choked Moon. According to his version of events, he did not approach police when they arrived but rather was assaulted by the officers after he let them into his apartment. Appellant admitted that he has been diagnosed with bipolar paranoid schizophrenia and that he hallucinates "at times." He stated that both he and Moon stopped taking their medications when they were doing drugs together. He acknowledged that he had been using cocoaine the night of the offense. When asked if he hallucinated at all that night, he replied, "I don't think it was a lot of hallucinations. Maybe a few, but that's been eight and a half months ago." Discussion
In his first issue, appellant complains the trial court abused its discretion in allowing the State to impeach him with previous remote convictions. During cross-examination, the State questioned appellant about his 1991 conviction for possession of a controlled substance, his 1992 conviction for robbery, his 1993 conviction for delivery of a controlled substance, and his 2002 conviction for possession of a firearm by a felon. Appellant also admitted during cross-examination that he was convicted of family violence assault in 2005 and 2006. Appellant argues that the 1991 possession conviction and the 1993 delivery conviction were older than ten years under the criteria set out in Texas Rule of Evidence 609. Texas Rule of Evidence 609(a) provides that a conviction less than ten years old is admissible if the probative value of the conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). Rule 609(b) provides that evidence of a previous conviction that is more than ten years old is not admissible unless the court determines the probative value of the conviction substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). When considering whether the probative value of a previous conviction outweighs its prejudicial effect, the trial court should consider (1) the impeachment value of the previous conviction, (2) the temporal proximity to the crime on trial, (3) the similarity between the charged and previous offense, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). As appellant acknowledges in his brief, factors two through five all favor admissibility of the 1991 and 1993 drug offenses. Although under the first factor the impeachment value of the possession and delivery convictions could not have been particularly high, the trial court did not abuse its discretion in admitting them in light of its consideration of the other four factors. Moreover, because the impeachment value of the remote drug offenses was not high, especially in light of his other previous convictions and the strength of the State's evidence against him, appellant could not have been substantially harmed by the prosecutor's questioning appellant about them. See Tex. R. App. P. 33.1(a). We resolve appellant's first issue against him. In his second issue, appellant complains he received ineffective assistance of counsel. He specifically complains that his attorney erred by failing to request a jury instruction on the lesser included offense of class-C-misdemeanor assault. It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced appellant. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Rylander, 101 S.W.3d at 111. It may be a reasonable trial strategy not to request a charge on a lesser-included offense. See Wood v. State, 4 S.W.3d 85, 87 (Tex. App.-Fort Worth 1999, pet. ref'd). Accordingly, appellant bears the burden of rebutting the strong presumption that, under the circumstances, defense counsel's decision not to request the instruction was sound trial strategy. And the record on appeal must demonstrate appellant's allegation. See id. The record in this case does not reveal defense counsel's strategy. Appellant did not allege ineffective assistance of counsel in his motion for new trial, and there is no other record of why defense counsel chose to conduct the case as he did. The record reveals that counsel did request unsuccessfully a jury instruction on the lesser included offense of deadly conduct, a class A misdemeanor, based on appellant's admission that he might have injured Moon when he took her keys. Appellant suggests that fact shows a deficient performance in not requesting an instruction on the class C misdemeanor involving offensive or provocative physical contact because it shows counsel was not adopting an all-or-nothing tactic with regard to lesser included offenses. Although appellant testified the only physical contact he engaged in with Moon was the touching of her arms and hands as he took away her keys, the evidence did not show appellant knew or should have reasonably believed Moon would have regarded the touching "offensive or provocative." See Tex. Penal Code Ann. § 22.01(a)(3) (Vernon Supp. 2009). Moon, for her part, denied appellant ever took away her keys. Based on the record before us, we conclude appellant has failed to show he received ineffective assistance of counsel. We resolve his second issue against him. We affirm the trial court's judgment.