Nos. 14-06-00403-CR, 14-06-00404-CR.
Opinion Filed April 12, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause Nos. 1026081, 1026082.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
ADELE HEDGES, Justice.
Appellant, Benjamin Edwards Scott, was convicted of the felony offenses of indecency with a child and aggravated sexual assault and was sentenced to ten and twenty-five years in prison. In appellant's first point of error, he contends that the trial court erred by suggesting the meaning of reasonable doubt to the jury. In his second and third points of error, appellant challenges the effectiveness of his trial counsel.
I. Suggestion of Reasonable Doubt Standard
In his first point of error, appellant contends that the trial court erred when it discussed the meaning of reasonable doubt to the jury panel during voir dire. When appellant failed to object to the trial court's discussion of the reasonable doubt standard, he waived his right to complain of this error on appeal. TEX. R. APP. P. 33.1; See Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App. 1999) (finding appellant waived complaint about trial court's explanation of reasonable doubt given to venire when appellant did not object). We overrule appellant's first point of error. II. Ineffective Assistance of Counsel
In his second and third points of error, appellant argues that he was denied effective assistance of counsel. In assessing the effectiveness of counsel, we apply the standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). In order to prove ineffective assistance of counsel, appellant must prove that (1) counsel's conduct fell below an objective standard of reasonableness, and (2) there exists a reasonable probability the results would have been different but for counsel's deficient performance. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 57. Appellant has the burden of proving his trial counsel was ineffective by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When reviewing a claim for ineffective assistance of counsel, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 772 (Tex.Crim.App. 1994) (citing Strickland, 466 U.S. at 689). Allegations of ineffective assistance of counsel must be firmly founded in the record. Thompson, 9 S.W.3d at 813-14. Direct appeal is usually an insufficient vehicle for raising a claim for ineffective assistance of counsel because the record is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Counsel should have the opportunity to explain his actions before being denounced as ineffective. Id. An appellate court will generally not find ineffective assistance of counsel where the record fails to provide an explanation of counsel's conduct, unless the conduct was so "outrageous that no competent attorney would have engaged in it." Id. In his second point of error, appellant contends that during counsel's cross-examination of Detective Dennis, counsel opened the door to evidence of two additional sexual assault allegations. Appellant also argues that counsel was ineffective in failing to request a limiting instruction and failing to request that the trial court articulate, on the record, the purpose of the extraneous evidence. At trial, while on cross-examination, counsel asked Detective Dennis how many people were living in appellant's home, whether he was concerned about the remaining children in the home, and whether he had interviewed any of appellant's other children. On re-direct, over counsel's objections, the State elicited testimony from Detective Dennis that two of complainant's cousins made allegations of a sexual nature against appellant, and complainant's cousins later testified regarding those allegations. Appellant has not provided an adequate record explaining counsel's reasons for conducting cross-examination of Detective Dennis as he did. Counsel may have been attempting to portray appellant in a favorable light by showing that Detective Dennis may not have perceived appellant to be a threat, as evidenced by the fact that Detective Dennis did not remove the remaining children living in appellant's home. Even if this strategy was not as effective as counsel intended, the effectiveness of counsel should not be evaluated based on the distorting effects of hindsight. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex.Crim.App. 2006). Additionally, counsel may have decided not to request a limiting instruction to avoid drawing the jury's attention to the extraneous offenses. See Garcia v. State, 887 S.W.2d 862, 881 (Tex.Crim.App. 1994) (finding trial counsel's decision not to request a limiting instruction to avoid reminding the jury of incriminating evidence was a reasonable trial strategy), overruled in part on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App. 2001); Abbott v. State, 726 S.W.2d 644, 649 (Tex.App.-Amarillo 1987, pet. ref'd) (finding counsel's failure to request limiting instruction because counsel did not wish to remind the jury of such matters was a reasonable trial strategy). Nothing in the record demonstrates that counsel's actions were not of sound legal strategy. See Scott v. State, 57 S.W.3d 476, 484 (Tex.App.-Waco 2001, pet. ref'd) (holding that trial counsel was not ineffective for opening the door to extraneous offenses through counsel's questioning of defendant's witness); Beheler v. State, 3 S.W.3d 182, 186 (Tex.App. — Forth Worth 1999, pet. ref'd) (holding that the record failed to show that counsel's decision not to request a limiting instruction on evidence of extraneous offenses was not of sound trial strategy). We also do not find that counsel's performance was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. As a result, the record does not support a finding of ineffective assistance of counsel for these actions. We overrule appellant's second point of error. In his third point of error, appellant contends that counsel demonstrated limited knowledge of the law and how to apply it at trial. Specifically, appellant contends that counsel (1) gave the jury facts of the case during voir dire, (2) failed to make speculation objections, and (3) did not understand impeachment law. During voir dire, appellant's counsel stated that appellant was "37 years old" and "married." The trial court explained to counsel that he could not give evidence to the jury. During trial, counsel attempted to impeach complainant by bringing forth her sexual history and her prior inconsistent statements made to the Children's Assessment Center. The trial court subsequently read the law and explained to counsel how to properly impeach a witness and to present prior inconsistent statements. By articulating facts to the jury during voir dire, counsel may have tried to humanize the defendant, which could be seen as a good trial strategy. See Goodspeed, 187 S.W.3d at 395 (Holcomb, J., dissenting) (noting that it is a good tactic in an aggravated sexual assault of a child case to establish rapport with prospective jurors and to humanize the accused). Furthermore, the trial court corrected counsel's failure to properly impeach by giving counsel the opportunity to go back and properly conduct cross-examination. Because counsel's mistakes were quickly remedied, it cannot be shown that counsel's actions affected the outcome of the case. Strickland, 466 U.S. at 691-692. With respect to appellant's argument regarding counsel's failure to make speculation objections, appellant has failed to identify the testimony that he alleges should have been objected to. In other words, appellant has failed to adequately provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record" regarding this sub-point. TEX. R. APP. P. 38.1(h). As a result, appellant has failed to show that counsel's conduct fell below an objectively reasonable standard which led to an outcome different from what it would have otherwise been. We overrule appellant's third point of error. We affirm the judgment of the trial court.