Opinion
No. 01-04-00072-CR
Opinion issued January 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 942850.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellant, Edward Mervyn Pittman, pleaded not guilty to the felony offense of possession of a controlled substance, namely cocaine, weighing more than four grams and less than 200 grams, with intent to deliver, and pleaded true to an enhancement paragraph that alleged a prior conviction for unauthorized use of a motor vehicle. The jury found appellant guilty. The trial court found the allegation in the enhancement paragraph to be true, and assessed punishment at 22 years in prison. In his sole point of error, appellant contends that he was denied the effective assistance of counsel because his trial counsel did not object to the State's use of remote prior convictions to impeach appellant's testimony. We affirm.
Background
Appellant was arrested on March 19, 2003 pursuant to outstanding warrants for his arrest, after Houston Police Officers Hooper and Eames observed him committing a traffic violation. In a search incident to appellant's arrest, Officer Hooper found a plastic bag containing powdered cocaine in appellant's waistband and $900 in appellant's pants pocket. During the inventory search of appellant's truck, Houston Police Officer Stevens found a fully loaded magazine clip for a .9 mm gun, a bag containing two "cookies" of crack cocaine, and a bag containing marihuana. At trial, a chemist testified that the three substances found in appellant's possession were 55.9 grams of powdered cocaine, 35.7 grams of crack cocaine, and 19.7 grams of marihuana. An investigator with the Houston Police Department's narcotics division testified that the quantity of the cocaine in appellant's possession was a distributive amount for sale rather than personal use. When appellant testified at trial, he admitted that the cocaine belonged to him, but he did not admit that he intended to deliver the cocaine. Appellant testified on November 4, 2003. He was cross-examined with, and acknowledged having received, sentences for prior convictions that occurred ten years and two days before his trial testimony, specifically, concurrent sentences of seven years' imprisonment on November 2, 1993 for aggravated assault and unauthorized use of a motor vehicle.Ineffective Assistance of Counsel
Appellant contends that his trial counsel was ineffective by not objecting on the grounds that the prior convictions used to impeach him were remote because they occurred more than ten years before his trial testimony. Under our Rules of Evidence, prior convictions are generally not admissible to impeach a witness if more than ten years has elapsed since the date of the conviction or the release of the witness from confinement imposed for the conviction, whichever is the later date. Tex. R. Evid. 609(b). To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel's performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693-94; see also Thompson, 9 S.W.3d at 812. A reviewing court must indulge a strong presumption, however, that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. 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 (citing McFarland v. State, 928 S.W.2d at 500). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Although the trial record affirmatively shows that prior convictions occurred over ten years from the time of appellant's trial testimony, the record is silent concerning the date of appellant's release from prison for those convictions. Accordingly, appellant has not established that his convictions would have been inadmissible due to remoteness under the Rules of Evidence. See Tex. R. Evid. 609 (b) (stating that conviction not remote if witness released from prison within ten years from testimony). Because appellant did not file a motion for new trial or request a hearing for a motion for new trial, the record before us is silent concerning trial counsel's reasons for not objecting to the prior convictions on the grounds of remoteness. See Mayhue v. State, 969 S.W.2d 503, 511 (Tex.App.-Austin 1998, no pet.) (citing Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993) (holding defendant may raise ineffective assistance of counsel claim and develop record in proceeding on motion for new trial)). We conclude that appellant has not met his burden of proving by a preponderance of the evidence that his trial counsel was ineffective by not objecting that appellant's convictions were remote. See Mitchell, 68 S.W.3d at 642. Accordingly, we overrule appellant's sole point of error.See Tex. Health Safety Code Ann. § 481.112(d) (Vernon 2004).
Specifically, the Rules of Evidence state: "Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Tex. R. Evid. 609 (b).