Opinion
NO. 12-10-00365-CR
02-29-2012
CRAIG ALLEN RAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 241ST
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Craig Allen Ray appeals from his conviction for assault. In three issues, Appellant argues that he was denied effective assistance of counsel. We affirm.
BACKGROUND
Appellant and his wife got into an argument on February 6, 2010. According to what she told the police, he hit her in the face during the argument. Five days later, the police found Appellant riding in a truck. The truck was stolen, and Appellant was later charged with theft and assault.
As the grand jury alleged it in the indictment, the assault charge was a felony because the assault was on a family member and Appellant had a prior conviction for assaulting a family member. Appellant pleaded not guilty at his trial on the assault charge. The jury found him guilty as charged. Following a sentencing hearing, the jury imposed a sentence of imprisonment for ten years. This appeal followed.
See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West 2011).
INEFFECTIVE ASSISTANCE OF COUNSEL
In three issues, Appellant argues that he received ineffective assistance of counsel. Specifically, he asserts that counsel conducted an ineffective voir dire examination and allowed inadmissible evidence to be admitted. He also argues that the cumulative effect of counsel's poor performance undermines confidence in the verdict. Applicable Law
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The first step requires an appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel's representation is not reviewed for isolated or incidental deviations from professional norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
The second step requires the appellant to show prejudice from the deficient performance of his attorney. See Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Ex parte Martinez, 330 S.W.3d at 900.
We begin with the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume counsel's actions and decisions were reasonable and were motivated by sound trial strategy. See id. Appellant has the burden of proving ineffective assistance of counsel. See id.
In United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657 (1984), the United States Supreme Court recognized what is sometimes called a limited exception to the Strickland analysis for situations where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." The exception applies when there has been a "denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Id., 466 U.S. at 659, 104 S. Ct. at 2047. The Cronic standard applies, however, only when counsel's failure to test the prosecutor's case is "complete." See Bell v. Cone, 535 U.S. 685, 696-97, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914 (2002). More often, the Cronic standard is not properly invoked, but courts have found the failure of counsel to be complete in situations where counsel is physically present but mentally absent, see Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005), or in some instances where counsel abandons his client in closing argument by conceding his guilt. See United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (collecting cases in which closing statements admitting guilt on the only disputed fact issues was Cronic error); but see Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 562, 160 L. Ed. 2d 565 (2004) (concession of guilt as part of strategy in capital case where guilt was clear not Cronic error). Analysis
Appellant complains about his counsel's specific conduct in four areas of the trial. The first area is counsel's conduct of the voir dire examination of prospective jurors. The trial court judge's qualification of the jurors and comments to the jury were recorded in thirty-three pages of the reporter's record. The prosecutor's examination of the panel consumed eighty-eight pages of the reporter's record. Appellant's counsel's questions took three pages to report. He asked the prospective jurors, rhetorically, if they now knew the "definition of pain" and described the prosecutor's presentation as monotonous. He asked how many jurors were married, and then asked "just the men" how many of them had "found" that "the women are always right." He conducted a very brief examination of one prospective juror and asked if there was "[a]nyone else out there from Lindale." He then delivered a soliloquy about disputes between husbands and wives and asked the jury panel to keep in mind that there were "two sides to every story." After reiterating that point, and after the prosecutor objected to the first statement, counsel ended his examination of the panel.
The second area is counsel's handling of Appellant's prior criminal history and an unrelated assault. Presumably in an attempt to establish that Appellant did not have a felony conviction, which was necessary for him to be eligible for community supervision if convicted,counsel asked an investigator if Appellant had been convicted of a felony offense. The investigator responded that Appellant had not been convicted of a felony offense. The State responded by asking the investigator to list all of Appellant's prior convictions. Counsel objected to the investigator's testifying about criminal cases that did not result in a conviction, but did not raise any other objections. The trial court made clear that it considered counsel to have opened the door to Appellant's prior convictions by asking if he had been convicted of a felony. The investigator then listed Appellant's prior convictions. Counsel also failed to object to testimony by the complaining witness's father that Appellant, when interrupted during an argument with the witness, pointed a gun at him.
With exceptions not relevant here, to be eligible for community supervision in a case where the jury is to assess the sentence, a defendant must file a pretrial motion averring, and then prove at trial, that he does not have a prior felony conviction. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(e) (West Supp. 2011).
The third area raised by Appellant is counsel's failure to object to testimony about the circumstances of his arrest. Appellant was not apprehended immediately after the assault. He was arrested five days later. When Appellant was arrested, he was the passenger in a stolen truck, and one of the other occupants of the truck had marihuana and methamphetamines on her person. Counsel did not object to the testimony that the truck was stolen or that another person in the truck had illegal drugs.
The fourth area is a transcript offered by the State during the sentencing hearing. The transcript was of an outburst by Appellant that occurred during the sentencing hearing while the jury was out of the courtroom. Appellant was unruly at different times during the trial, and the trial court had excused the jury as Appellant began this particular outburst. Appellant made a number of statements to the trial court including that "they're up in here violating my motherf*cking rights" that, referring to the judge, he didn't want to "hear nothing from your motherf*cking *ss neither [sic]"; an exhortation to "[l]ook how these folks are over there acting on this godd*mn jury"; and a description of the jury verdict as "bullsh*t."
The State had a transcript of these statements made and offered it into evidence. Appellant's counsel did not object when it was offered, but he did object a short time later. In his objection, he stated that he had not read the exhibit and did not realize that it went "into everything."
Finally, Appellant argues that the cumulative effect of counsel's errors deprived him of his right to counsel and to a fair trial.
Voir Dire Examination of the Jury
In Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex. Crim. App. 2005), the court of criminal appeals listed a number of reasons that an attorney might decline to question a panel of prospective jurors. The court recognized that counsel may not want to engage in an inquiry about sentencing because of the way such an inquiry might be taken by prospective jurors, that counsel may have been satisfied with the panel, or that counsel may even have sought to avoid giving the state additional information on which to base its strikes. The court also recognized that, as here, it is difficult to evaluate counsel's performance on direct appeal if the record does not disclose the reasons for counsel's actions. Id. at 394.
In Goodspeed, the defense attorney asked no questions. In this case, counsel did essentially the same thing. His voir dire technique was unlike that employed by most attorneys. However, counsel's statements to the jury do reveal one of the reasons for his actions. Specifically, the State's voir dire examination had been long and comprehensive. Presumably, the jury had been in the courthouse for a long time that day. Counsel stated that he was going to "make this fast" because he knew that the potential jurors were "tired and worn out." By offering a folksy mien and, essentially, taking the jury's side against a further waste of their time, counsel sought to ingratiate himself with the jury.
Appellant has not identified any juror characteristics that were missed by counsel. See, e.g., Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex. Crim. App. 1995) (juror had undisclosed relationship with prosecutor that court held should have been uncovered by counsel). Counsel participated in a discussion about excusing jurors for cause, and it appears that he exercised preemptory strikes. In light of the court of criminal appeals' decision in Goodspeed and because Appellant has not shown that he was prejudiced by counsel's failure to ask a specific question or undertake a more comprehensive examination, we are unable to conclude that Appellant has shown that he received ineffective assistance during the voir dire examination of potential jurors.
Prior Criminal History and Unrelated Assault
The State does not argue that there is an independent basis for the admission of Appellant's prior criminal history, which consisted of misdemeanor offenses, or for the description of the assault on the complaining witness's father. Instead, the State argues that counsel opened the door to the admission of the prior criminal history and that an objection to the assault would have been futile because evidence of the assault had already been offered through the complaining witness.
See, e.g., Bowley v. State, 310 S.W.3d 431, 434-35 (Tex. Crim. App. 2010) (defendant opened door to otherwise inadmissible evidence by creating false impression).
Appellant does not show, or assert, that the trial court's conclusion that counsel's questions permitted the State to inquire about his prior criminal history was erroneous, but instead relies upon the general rule that such evidence is inadmissible. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) ("To successfully assert that trial counsel's failure to object amounted to ineffective assistance, the applicant must show that the trial judge would have committed error in overruling such an objection."). Specifically, he argues that the evidence is irrelevant (Texas Rule of Evidence 401), more prejudicial than probative (Rule 403), and unavailable for impeachment (Rule 609). Accordingly, he argues, counsel was ineffective and "rendered ineffective assistance" when he did not raise these objections.
We agree that a defendant's prior criminal history is inadmissible, generally speaking, at a trial for an unrelated offense. However, the State did not seek to offer this evidence until counsel asked if Appellant had previously been convicted of a felony offense. The trial court made clear that it considered this to have opened the door and allowed the State to rebut the possible suggestion that Appellant did not have prior convictions for any crimes.
Appellant has not shown that the trial court's ruling, which was based upon counsel's having "opened the door," was erroneous, and so he has not shown that an objection would have been helpful. Of course, Appellant also argues that counsel was ineffective for asking the question about whether he had a prior felony conviction. The procedural posture of this case frustrates our review of this question. See, e.g., Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ("Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional."). It is certainly unusual to qualify a defendant for community supervision during the guilt/innocence phase of the trial, but it is possible that counsel had some reason for doing it at that time. Additionally, Appellant's prior criminal history consisted of charges for less than the most serious of offenses. And the jury heard in the State's case in chief that he had a prior conviction for assaulting the complaining witness in this case. It could be that counsel concluded that it was worth showing that Appellant had not committed serious or infamous crimes. Because of the state of the record, we cannot know if counsel had these or other reasons for his actions. We must presume that his conduct was reasonable and professional, and we are unable to say that no attorney would ever permit this kind of information to be admitted.
In sum, Appellant has not shown that further objection would have been fruitful, because he has not shown that the trial court erred in concluding that counsel had opened the door, or that counsel grievously erred by opening the door to inquiry about his prior criminal history. Accordingly, we hold that Appellant has not shown that counsel's handling of the issue of the prior criminal history was unprofessional or that it deprived Appellant of his right to counsel.
With respect to the assault on the complaining witness's father, we agree with the State that there was little additional harm in counsel's allowing the father to testify about the assault after the complaining witness had described it. Nor has Appellant shown that an objection to this evidence would have been sustained. The State has not argued that it was otherwise admissible, but it is plain from the State's questioning about the incident with the gun that it took the position that Appellant's counsel had first broached the subject. Indeed, Appellant's counsel may have opened inquiry into the assault by asking the witness why she filed for divorce in 2001. He also asked her if their fights had been physical over the years and attempted to show that there was a mutuality to the violence in their relationship. On redirect examination, the prosecutor began by referencing defense counsel's questioning about prior assaults and elicited her description of the 2001 assault. Because Appellant failed to show that the details of that assault were not relevant, especially once his counsel brought them up, he has not shown that an objection to the father's testimony would have been sustained or that counsel was ineffective.
Circumstances of Arrest
It is difficult to discern a reason counsel would not have objected to the testimony that Appellant was in a stolen truck when he was arrested or that another passenger had illegal narcotics on her person. The State posits that because the trial court overruled counsel's objection to the playing of a videotape of the arrest, it would have been futile for counsel to object to the officer's description of the arrest.
But one of the purposes of an objection is to preserve an issue for appellate review, something that did not occur because counsel did not object to the officer's description of the arrest. See, e.g., TEX. R. APP. P. 33.1 (issue not preserved for appellate review absent contemporaneous objection). We recognize that the State may offer evidence regarding the circumstances of an arrest. See, e.g., Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). So too can evidence of flight be admissible as an inference of guilt so long as it appears that the flight or escape has some relevance to the offense under prosecution. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989).
The State argued at trial that the fact that the truck was stolen—Appellant admitted to the police that he stole the truck—was relevant because it showed that Appellant was trying to avoid the police by travelling in a truck other than his own. Appellant does not address this issue. The inference of flight is weak in this case, but it may be one on which reasonable minds could differ. The State does not argue that it was relevant that another passenger had illegal drugs in her possession.
Assuming, for purposes of argument, that counsel could have successfully prevented the jury from hearing that the truck was stolen and that another passenger had drugs, we are not persuaded that Appellant has demonstrated prejudice. The complaining witness testified directly that Appellant assaulted her. There were photographs of the injuries, a prompt report of the assault, and a contemporaneous police investigation. Furthermore, Appellant wrote letters to both his wife and to their daughter. In his letter to his wife, he apologized for "put[ting] [his] hands on" her in a "harmful way." To his daughter, he made a similar apology for putting his "hands" on her mother. Additionally, a doctor who examined the complaining witness the night of the assault testified that her injuries were consistent with trauma or "a blow."
In short, we are not persuaded that counsel's failure to exclude the evidence that Appellant stole a truck or that one of his companions had drugs had an effect on the verdict. The evidence that supports the verdict is strong, and our confidence is not undermined by what may have been an isolated failure to object. We overrule Appellant's first issue.
Punishment Evidence
Appellant argues that counsel was ineffective for failing to object to the admission of a transcript of his statements made while the jury was excused from the trial. He also argues that counsel was ineffective because he agreed to have the transcript admitted without reading it.
We note that while counsel stated that he had not read the transcript, he had been present when Appellant made the statements.
The statements were inflammatory, but we are not persuaded, as Appellant argues, that the statements were inadmissible. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (Appellant must show that it would have been error for the court to overrule an objection to the admissibility of the evidence.); Matthews v. State, 960 S.W.2d 750, 753 (Tex. App.–Tyler 1997, no pet.). Evidence may be offered at a punishment hearing as to
any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2011).
Appellant filed an application for community supervision. Accordingly, evidence of his willingness to comply with court orders is relevant to the issue of his suitability for community supervision. See, e.g., Johnson v. State, 181 S.W.3d 760, 766 (Tex. App.–Waco 2005, pet. ref'd) (citing Najar v. State, 74 S.W.3d 82, 87-88 (Tex. App.–Waco 2002, pet. dism'd); Peters v. State, 31 S.W.3d 704, 719 (Tex. App.–Houston [1st Dist.] 2000, pet. ref'd)). Appellant's inability to conform his demeanor to that commonly observed in a courtroom is relevant to his suitability for community supervision, and so counsel was not ineffective for failing to object to the transcript that contained Appellant's outburst. We overrule Appellant's second issue.
Cumulative Effect of Trial Counsel's Actions
In his third issue, Appellant argues that the cumulative effect of counsel's failures prejudiced him. We disagree. Appellant did not suffer from a Cronic -type complete lack of counsel. We have identified one instance in which counsel erred. Specifically, the evidence that a person with Appellant when he was arrested had drugs was not relevant and could have been excluded. In addition, it is possible that counsel could have minimized the testimony about the stolen truck or had it excluded entirely as the State's rationale for admitting it was weak and the trial court may have sustained an objection pursuant to Rule 403 or simply as a matter of caution.
Appellant has identified other areas where counsel could have taken a different course. For example, most attorneys would have conducted a more thorough voir dire examination. And many attorneys would have objected, even if unsuccessfully, to references to the other assaults Appellant committed, to the evidence of his outburst being admitted during the punishment hearing, and to testimony about the stolen truck. However, the Strickland test does not ask whether counsel performed within the narrow range of common experience. Indeed, what could be considered counsel's seeming nonchalance about the evidence admitted can also be understood as a nonreckless, nothing-to-hide attempt to obtain a favorable outcome for a defendant who had assaulted his wife and had written two notes apologizing for doing so. As a contrasting example of attorney tactics, in Hall v. State, No. 12-07-00478-CR, 2009 Tex. App. LEXIS 4954, at *14-17 (Tex. App.–Tyler June 30 2009, no pet.) (mem. op., not designated for publication), we considered an attorney who took an antagonistic approach to the trial, who asked questions after objections had been sustained, and who made aggressive arguments about perceived flaws in the police investigation. In that case, we looked to the Supreme Court case of Yarborough v. Gentry, 540 U.S. 1, 10-11, 124 S. Ct. 1, 6-7, 157 L. Ed. 2d 1 (2003). In Yarborough, the defense attorney had referred to his client as a "bad person, lousy drug addict, stinking thief, [and a] jailbird . . . ." The Court, while noting that the lawyer was no "Aristotle or even Clarence Darrow," held that counsel did not render ineffective assistance because such a course of action is "precisely the sort of calculated risk that lies at the heart of an advocate's discretion."
Neither the approach in Yarborough nor the approach here is a quotidian or textbook criminal defense. But they are strategic choices and calculated risks made by counsel, in this case counsel hired by Appellant, in an attempt to obtain a favorable outcome. This is not one of the rare cases in which a silent record as to counsel's reasoning allows us, nevertheless, to conclude that counsel's actions fell below professional norms or that Appellant, given the evidence against him, was prejudiced by counsel's actions. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). We overrule Appellant's third issue.
DISPOSITION
Having overruled Appellant's three issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered February 29, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
NO. 12-10-00365-CR
CRAIG ALLEN RAY, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 241st Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 241-0400-10)
THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.