Opinion
No. 01-09-00941-CR
Opinion issued June 10, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Case No. 1192316.
Panel consists of Justices KEYES, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Charles Shannon Simpson, was charged by indictment with the offense of felony possession of a firearm, enhanced by two prior felonies. Appellant pleaded not guilty to the primary offense and pleaded "true" to the enhancements. A jury found appellant guilty, found the enhancements true, and assessed punishment at confinement for 25 years. In his sole point of error, appellant contends that he was denied effective assistance of counsel. We affirm.
See TEX. PENAL CODE ANN. § 46.04 (Vernon Supp. 2009).
Background
On the night of November 18, 2008, Officer A. Olvera of the Houston Police Department was on patrol when he saw the driver of a vehicle traveling on Russell Street fail to signal a left turn. Officer Olvera got behind the vehicle, ran the license plate, and learned that the license was expired and had outstanding city warrants. He then stopped the car. The driver, later identified as appellant, did not have a valid driver's license. Officer Olvera testified that he believed that something was amiss because appellant was nervous and fidgety. Officer Olvera called for backup officers to assist. Officers Nieto and Bueno arrived on the scene and, together, the three officers approached appellant. When the officers opened appellant's car door, they could smell marijuana and saw "little poppy seeds of marijuana" on the driver's side floorboard of the car. Officer Olvera testified that Officer Bueno patted down appellant and found three bullets for a .38 Special in appellant's right front pocket. Officers Olvera and Nieto found an unloaded, chrome-colored, .38-caliber pistol in the glove box of appellant's car. As the officers retrieved the weapon, appellant began yelling that the pistol belonged to his aunt and that he had been trying to prevent her from "committing some stupid act." Appellant testified that, on the night of the incident, he was driving his girlfriend's car and that he had picked up his aunt from her apartment, where she had been involved in a confrontation with other men. Appellant testified that, when he arrived at his aunt's house, he unloaded the pistol into his pocket. Appellant testified that he did not know, however, how the pistol got into the car. Appellant also testified that he knew that he was not supposed to be in possession of a firearm. Appellant did not file a motion for new trial. This appeal followed.Ineffective Assistance of Counsel
Appellant contends that he was denied effective assistance of counsel because counsel (1) arrived 45 minutes late to trial and was held in contempt of court; (2) failed to properly object to the admissibility of the weapon and generally failed to make objections; (3) failed to pursue any defensive strategies; and (4) allowed appellant to give damaging testimony.A. Standard of Review
To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) that, but for the deficient performance of counsel, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. To prevail, appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. See Robertson v. State, 187 S.W.3d 475, 482 — 83 (Tex. Crim. App. 2006). A failure to make a showing under either prong defeats a claim of ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Any allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Generally, the record on appeal is undeveloped, and a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110-11. In the rare cases in which the record on direct appeal is sufficient to show that counsel's performance was deficient, an appellate court should address the claim. Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000). On a record that is silent regarding counsel's strategy, this court can find ineffective assistance of counsel only if the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).B. Analysis
1. Late to trial Appellant first contends that his counsel was ineffective because he arrived 45-minutes late to trial and was held in contempt of court. The record shows that, at the beginning of trial, the following discussion took place between appellant's counsel and the trial court, outside the hearing of the jury:[Counsel]: [I] [a]pologize for being late, Your Honor.
The Court: Well, since you're supposed to be here at 9:30, I'd say you are. It's 10:15 now, 45 minutes late. I've got a jury that's been here since, oh, about 9:20. So you tell me why you were.
[Counsel]: I had a jury trial scheduled in the Justice of the Peace Court 51. I turned in a motion yesterday for a continuance. They told me that if I was not there at 9:00 a.m. that my client would be found guilty by default and that —
The Court: Found guilty by default, I've never heard of such a thing.
[Counsel]: They told me if I wasn't there that they would be found guilty and —
The Court: That's impossible.
[Counsel]: Well, that's what the clerk told me.
The Court: You ought to know better. So you went to J.P. Court this morning instead of being here at 9:30 like you're supposed to?
[Counsel]: I had to take care of my client's interest and my personal consequences to me [sic] I have to accept. And I apologize and accept whatever consequences.
The Court: I'll figure out what those are. And I'm holding you in contempt of Court. And fill out the necessary documentation before you leave today, sir. Thank you.
Once the jury entered the courtroom, the trial court explained the late start of trial as follows:
The Court: . . . Good morning, ladies and gentlemen of the Jury. . . . I apologize to you about starting late, I like to start promptly at 9:30 but sometimes matters are out of my control. And that's what happened today, we didn't get everybody here until just about two seconds ago. With that, I'll ask, is the State ready to proceed?The record does not reflect that the jury had any knowledge that the tardiness of appellant's counsel was the cause of the late start, and appellant has not advanced any argument demonstrating how he was prejudiced by counsel's late arrival. As such, appellant has not shown that there is a reasonable probability that, but for counsel's tardiness, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.-Texarkana 2003, pet. ref'd) (concluding that being held in contempt for tardiness to trial does not render counsel per se ineffective). A failure to make a showing under either prong defeats a claim of ineffective assistance of counsel. Rylander, 101 S.W.3d at 110. 2. Failure to object Appellant next contends that his counsel was ineffective because he failed to properly object to the admissibility of the weapon and because he generally failed to make any objections at trial. Specifically, with regard to the weapon, appellant complains of his counsel's objection and the trial court's response, emphasized below, during the State's direct examination of Officer Olvera:
[State]: Can you tell us what State Exhibit No. 4 is?
[Officer]: It's a chrome — chrome revolver.
[State]: Is this the same firearm you found in the . . . glove compartment —
[Officer]: Yes.
. . . .
[State offers Exhibit No. 4]
[Counsel]: Your Honor, we'd like to object. This is not the gun that was in the glove compartment.
The Court: I can't hear a word you just said.
[Counsel]: Approach, Your Honor?
( At the bench)
The Court: Yes, sir.
[Counsel]: Your Honor, he says this is not the gun that was found —
The Court: Your client says it wasn't — I'm sorry?
[Counsel]: This is not his gun.
The Court: That has nothing to do with whether it's admissible or not, counsel.The trial court then admitted Exhibit No. 4, the pistol. The record shows that the specific discussion appellant complains of took place at the bench and outside the hearing of the jury. Although it appears that, prior to the discussion appellant complains of, the same statement was made in front of the jury, appellant does not advance any argument on appeal demonstrating how he was prejudiced by that statement. Appellant has not met his burden to show a reasonable probability that, but for counsel's allegedly inartful objection, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Appellant also makes the bare assertion that his counsel was ineffective for having generally failed to enter any objections. Appellant does not point to any place in the record in which counsel failed to offer a proper objection. To successfully argue that counsel's failure to object amounted to ineffective assistance, appellant must show that the trial court would have committed error in overruling such an objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Hernandez v. State, 799 S.W.2d 507, 509 (Tex. App.-Corpus Christi 1990, pet. ref'd) (explaining that failure to object does not establish ineffective assistance of counsel if no proper objection could have been made). We cannot conclude that appellant has overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. See Robertson, 187 S.W.3d at 482-83; Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000). 3. Defensive strategies Appellant next contends that his counsel was ineffective because he failed to pursue any defensive strategies. To the contrary, the record shows that counsel filed pre-trial motions; questioned the venire; cross-examined the State's witnesses; and successfully advanced objections to the charge. In addition, counsel argued in closing that the State had failed to show that appellant owned the car or had "ever possessed any kind of a weapon." Counsel emphasized appellant's testimony regarding the circumstances surrounding appellant's aunt having been in the car and having left the gun in the car. At punishment, counsel presented the testimony of three witnesses on behalf of appellant. After reviewing the totality of defense counsel's representation and employing the strong presumption that counsel's conduct might reasonably be considered sound trial strategy, as we must, we conclude that appellant has not met his burden under Strickland to show that counsel was ineffective on this basis. See Robertson, 187 S.W.3d at 482 — 83; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). 4. Damaging testimony Finally, appellant contends that his counsel was ineffective because he allowed appellant to give damaging testimony. Specifically, appellant complains that he admitted during his testimony that he had been holding his aunt's pistol and that he had removed the bullets himself. Appellant complains that, "[w]ith this confession, [he] essentially admitted the elements of the charged offense." The record before us is silent concerning counsel's motivations because appellant did not file a motion for new trial. See Gamble, 916 S.W.2d at 93. When the record is silent, we may not speculate about counsel's approach. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93. We must presume counsel had a plausible reason for his actions. Safari v. State, 961 S.W.2d 437, 445 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). In this case, counsel's actions are not such that no reasonable trial strategy could explain them. See Robertson, 187 S.W.3d at 482 — 83. Appellant, therefore, has failed to overcome the strong presumption that his trial counsel acted within the range of reasonable professional assistance. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Accordingly, we overrule appellant's sole point of error.