Opinion
No. 10-05-00363-CR.
Opinion delivered and filed December 6, 2006. DO NOT PUBLISH.
Appeal From the 54th District Court, McLennan County, Texas, Trial Court No. 2004-1163-C.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray concurs only in the judgment and not this opinion. No separate opinion will be issued.)
MEMORANDUM OPINION
A jury convicted Michael Walker of aggravated robbery and assessed punishment at thirty years in prison. He raises two issues in this appeal. We will affirm. Walker's first issue asserts that the trial court abused its discretion in refusing to admit allegedly prior inconsistent statements of one of the robbery victims. A trial court's exclusion of evidence is reviewed for abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005). A trial court abuses its discretion if its ruling falls outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Three young men robbed Cruz Jewelry at gunpoint. Jessica Cruz, one of the robbery victims, identified Walker, whom she knew, as one of the robbers. Wesley Alexander, a defense investigator, had interviewed Jessica before trial, and during cross-examination, Walker attempted to elicit testimony from Jessica indicating that she had told Alexander things about Walker and the robbery that were allegedly inconsistent with her testimony on direct examination. Walker then attempted to have Alexander testify about allegedly inconsistent statements, but the trial court sustained the State's objection on the ground that the prior statements were not inconsistent. Walker preserved his complaint with a bill of exceptions. A prior inconsistent statement may be admitted under rule 613 of the Rules of Evidence. But before extrinsic evidence of the statement is allowed, the witness must be told the contents of the statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. TEX. R. EVID. 613(a). If the witness unequivocally admits having made the statement, extrinsic evidence of it shall not be admitted. Id. The dispute centers on Jessica's not telling Alexander that she had regularly seen and talked with Walker at school, that the three robbers had initially approached the store's door before veering off and then returning to commit the robbery, and that she had recognized Walker. Jessica admitted on cross to talking to Alexander and said that if he did not question her about these disputed details of the robbery, she would not have told him about it. In other words, Jessica explained that, when she talked to Alexander, she omitted details if he did not ask about them; she admitted that her statements about the details may have been inconsistent, but only because he did not ask her about them. Jessica's prior statements to Alexander were not necessarily inconsistent with her trial testimony, and she admitted and explained that her statements to Alexander may have omitted details. The trial court thus did not abuse its discretion in excluding Alexander's testimony. We overrule issue one. Walker's second issue complains that his trial counsel provided ineffective assistance by failing to request notice from the State of punishment evidence under article 37.07, § 3(g) of the Code of Criminal Procedure. A claim of ineffective assistance of counsel is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, a defendant must first show that his counsel's performance was deficient and fell below an objective standard of reasonableness. Id. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Then it must be shown that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We have previously held that defense counsel's failure to request notice under article 37.07, § 3(g) is unreasonable and not justifiable as sound trial strategy. See Loredo v. State, 157 S.W.3d 26, 29-30 (Tex.App.-Waco 2004, pet. ref'd). Walker has thus met his burden on the first prong. The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial — a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Loredo, 157 S.W.3d at 30. The appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 669, 104 S.Ct. at 2056. The State called two punishment witnesses, Helen Sullivan and Gary Greene. Sullivan, a loss prevention officer, testified that Walker had participated in shoplifting clothing at Kohl's. Walker's trial counsel, who later admitted to having previously seen the video or still photos of the shoplifting episode in the prosecutor's file and thus knew about it, adequately cross-examined Sullivan. Greene, a police officer, testified that he had stopped Walker for an expired license plate and that Walker smelled of marihuana. The trial court excluded a video of the traffic stop because of lack of notice. Greene said that he gave Walker citations for no license and no liability insurance, and as of the time of trial, an arrest warrant was out for those citations. Greene was adequately cross-examined. Nothing in the record indicates, and Walker does not argue, that his trial counsel would have taken different steps to rebut or object to the State's evidence had he received written notice of these extraneous bad acts. See Loredo, 157 S.W.3d at 31; see also Hinton v. State, 166 S.W.3d 331, 333 (Tex.App.-Waco 2005, pet. ref'd). There is also nothing in the record to indicate that the jury might have assessed less than 30 years; he was facing up to life imprisonment and a $10,000 fine. Based on the record, it is not reasonably probable that Walker's sentence would have been any less. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Loredo, 157 S.W.3d at 31. Therefore, counsel's error was not so serious that it deprived Walker of a fair trial. 466 U.S. at 687, 104 S.Ct. at 2064; Loredo, 157 S.W.3d at 31. This error was not of a magnitude significant enough to render Walker's trial counsel ineffective. Loredo, 157 S.W.3d at 31. We overrule issue two. We affirm the trial court's judgment. Affirmed