In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-01057-CR
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GARFIELD ALDINGTON CAMPBELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 855276
O P I N I O N
A jury convicted appellant, Garfield Aldington Campbell, of forgery of a government instrument. See Tex. Pen. Code Ann. § 32.21(b), (e) (Vernon Supp. 2002). After appellant pled true to two enhancement paragraphs alleging prior convictions for possession of marihuana and attempted illegal investment, the jury assessed punishment at 60 years in prison. We affirm.
Background
Appellant was tried for this offense before two juries. The first trial resulted in a hung jury. The second trial resulted in a conviction, from which appellant appeals.
In September 2000, as appellant was being booked at the station on an outstanding assault warrant, Harris County Sheriff’s Department Deputy Preston Foose entered to book another individual on an unrelated case. The detective with appellant asked Deputy Foose to look at two Social Security cards that Deputy Foose had seen the detective remove from appellant’s wallet. The first card, which bore the name “Garfield Aldington Campbell,” appeared to be forged because it had a mistyped letter, its color was too light, and the card used a typeface different from that normally used. The second card, which bore the name “Garfield Aldington Campbell, Jr.,” appeared to be authentic. The first card did not bear a number belonging to appellant, but the second card did, even though, according to the deputy, appellant had claimed that the second card belonged to his dead infant son. According to the deputy, appellant admitted that he had bought the first card for $800 from a friend. The deputy then arrested appellant for possession of a forged government document.
Appellant testified as the sole defense witness. Appellant claimed that the second card had belonged to his dead son and that appellant carried it for sentimental reasons; that appellant had never seen the first card, did not know it was in his wallet, and had not forged it; that he did not tell Deputy Foose that he had bought the first card from a friend; and that appellant did not have any Social Security card of his own. Appellant also insinuated that his wife and her alleged boyfriend had planted the document in his wallet to frame him and that Deputy Foose might have conspired with them.
Ineffective Assistance of Counsel
In a single issue, appellant claims his trial counsel was ineffective at the guilt stage, in violation of the United States Constitution. See U.S. Const. amends. VI, XIV.
A. Standard of Review and Burden of Proof
The standard for evaluating claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel’s error or omission, the result of the proceedings would have been different. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69; Thompson, 9 S.W.3d at 812; Gamble, 916 S.W.2d at 93. A “reasonable probability” that the result would have been different means a probability sufficient to undermine confidence in the outcome. Thompson, 9 S.W.3d at 813; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the representation and the circumstances of the particular case. Thompson, 9 S.W.3d at 813.
The defendant must prove ineffective assistance of counsel by a preponderance of the evidence. Id.; Jackson, 973 S.W.2d at 956. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93. We will normally not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. See Gamble, 916 S.W.2d at 93. However, “in the rare case where the record on direct appeal is sufficient to prove that counsel’s performance was deficient, an appellate court should obviously address the claim . . . .” Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000) (emphasis added).
B. Allegations of Ineffective Assistance of Counsel
1. Failure to Make Proper Continuance Motion
Appellant first argues that counsel was deficient for moving for an continuance without meeting the statutory requirements.
Just before voir dire began in the second trial, appellant’s counsel orally moved for a continuance:
Counsel:The defendant is not ready at this time, and we are asking the Court to continue this case. . . . And it was a hung jury yesterday. And, one, we need the transcript, the trial transcript. It is not going to be here until 12:00 o’clock. That’s what the court reporter says. I already paid the court reporter.
Court:I talked to the court reporter in this matter and she informed me it will be ready by noon. This case was heard. It lasted about 45 minutes. And you were here and heard the evidence and Mr. Campbell heard the evidence and it will be here for cross-examination.
Counsel:And, also, Your Honor, there are certain witnesses that we would want to call. I might need them. I need to do a bill based on the information that came out in the trial.
Court:Well, you knew about that yesterday. I hope you got the subpoenas out, and the Court will see that you get expedited service on those matters.
Counsel:I have subpoenaed one. That’s what I am saying that we are not able to locate the witness but we are aware of the witness. I wanted to just in case it comes back on appeal on this case but there are witnesses. There are leads that I have gotten dealing with this case that I need to pursue as a lawyer, and I don’t think I could effectively represent Mr. Campbell if I were not able to pursue it based on that information.
The trial court denied the motion. The State began its case-in-chief about five and a half hours later. At no time during trial did appellant’s counsel renew his request for a continuance properly or make an offer of proof on the needed witnesses.
A continuance motion must generally be written and sworn to preserve error. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1989); Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999). When based on a witness’s absence, the motion must also recite certain information about the witness, his expected testimony, and the diligence used to procure him, among other things. See Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 1989). Counsel’s oral motion did not meet these criteria.
However, nothing in the record shows, in the five and a half hours between the motion and the State’s case-in-chief, whether these witnesses had been located, whether they were then available, or whether additional subpoenas had issued. More importantly, the record does not reveal who the witnesses were or to what they would have testified. Accordingly, assuming without deciding that counsel performed deficiently, we cannot know if the trial’s outcome would have been different without knowing whether the witnesses’ testimony would have favored appellant and whether they were available at the time of trial. See Reese v. State, 905 S.W.2d 631, 635-36, 638 (Tex. App.—Texarkana 1995, pet. ref’d) (after concluding counsel’s continuance motion was inadequate for being unsworn and not reciting matters required when its basis was witness unavailability, holding defendant did not meet burden of showing prejudice under Strickland because content of witness’s testimony not shown); cf. Akin v. State, 981 S.W.2d 297, 301-02 (Tex. App—Texarkana 1998, no pet.) (overruling ineffectiveness challenge based on counsel’s failure to request continuance for witnesses who were absent due to mistake in subpoenas’ return date because defendant admitted one witness knew nothing about the case, another witness actually testified, and nothing showed two other witnesses had helpful knowledge or were available).
2. Objection Based on Inapplicable Rule of Evidence
Appellant next argues that his counsel was deficient because counsel objected to State’s exhibit three—a certified document from the Social Security Administration, which stated that the Social Security number on the first card did not belong to appellant—under the wrong rule of evidence.
The State offered exhibit three under rule of evidence 902(1), which allows domestic, public documents under seal to be admitted without an authenticity predicate. See Tex. R. Evid. 902(1). Appellant’s counsel objected he had not received 14 days’ notice. The trial court overruled the objection.
Rule 902(1) does not require that the State file a document under seal with the court or serve it on the defendant. See id. Appellant does not argue that the document was inadmissible, and the trial court appears to have been within its discretion in admitting the document under rule 902(1). See id. Rather, appellant argues that counsel’s objection shows that counsel did not understand the rules of evidence. Even if counsel did not understand rule 902(1), appellant does not show how he was harmed by that shortcoming because the document was still admissible. Appellant explains further that, because counsel “believed a document important to the prosecution to be inadmissible [under rule 902(10)], he could not possibly advise Appellant that the State would be able to prove this essential element of its case.” Nothing in the record shows how counsel advised appellant. To consider this argument would require speculation, which we decline to do. See Gamble, 916 S.W.2d at 93.
3. Failure to Object to Deputy Foose’s Testimony Concerning Appellant’s Statement
Appellant also argues that counsel was deficient for not objecting to Deputy Foose’s testimony of a statement by appellant showing intent.
The State had to prove that appellant forged the first Social Security card with the intent of harming or defrauding another. See Tex. Pen. Code Ann. § 32.21(b). The statute defines “forge” to mean
(A)to alter, make, complete, execute, or authenticate any writing so that it purports:
(i)to be the act of another who did not authorize that act;
(ii)to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii)to be a copy of an original when no such original existed;
(B)to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or
(C)to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B).
See id. § 32.21(a)(1)(A)-(C).
On direct examination, Deputy Foose concluded that the first Social Security card was forged for the reasons stated earlier. He also testified that appellant had easy access to the fake card in his wallet. The deputy then testified as follows:
State:Did you form an opinion of whether or not the defendant intended to use to [sic] utter those cards?
Deputy:Yes, sir.
Counsel:Object, Your Honor, that’s a legal question.
Court:That will be overruled. He may state an opinion.
State:And what was your opinion?
Deputy:Due to the name and under the circumstances that I found out about the defendant and something else the defendant had told me himself, it came to my conclusion that he was going to use it for possibly illegal purposes.
. . . .
State:Did you form an opinion as to whether or not the defendant knew that those cards were forged?
Deputy:Yes, sir.
State:What was that opinion?
Deputy:Something he had stated to me about it being forged.
State:Do you believe that he knew it was forged?
Deputy:Yes, sir.
(Emphasis added.)
Appellant complains that his counsel should have objected to the italicized portions quoted above because (1) they called for speculation, (2) the deputy had not been qualified as an expert, (3) his opinion was irrelevant and more prejudicial than probative, and (4) nothing showed that the deputy had complied with Code of Criminal Procedure article 38.22 regarding oral statements. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon Supp. 2002) (setting out prerequisites for use of an accused’s oral statements made during custodial interrogation).
As shown above, counsel had objected earlier that the State’s question—“Did you form an opinion of whether or not the defendant intended to use to [sic] utter those cards?”—was a “legal question.” However, nothing shows counsel’s strategy in not renewing that objection, or raising new objections, to the deputy’s complained-of answers. We normally do not speculate on counsel’s strategy regarding whether to make trial objections. See, e.g., Moore v. State, 4 S.W.3d 269, 275-76 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding defendant did not show trial counsel was deficient for not objecting to testimony of extraneous offenses, the admissibility of which was “questionable,” when, among other things, nothing in record showed counsel’s strategy); see also Gamble, 916 S.W.2d at 93.
Our refraining from speculating is especially appropriate here because we can think of at least one plausible strategy for counsel’s not objecting. Compare Robinson, 16 S.W.3d at 813 n.7 (“[I]n the rare case where the record on direct appeal is sufficient to prove that counsel’s performance was deficient, an appellate court should obviously address the claim . . . .”). The same counsel represented appellant in the first trial, which resulted in a hung jury. Although we have no reporter’s record from the first trial, the jury’s notes and the docket sheet in the clerk’s record reveal that appellant, in fact, testified. During deliberations, the first jury advised the trial court that its “point of disagreement revolves around the credibility of the witnesses. All 12 [jurors] are adamant about which witness to believe.” The jury then specifically asked to see appellant’s cross-examination testimony about “having the fake SSN card.” The trial court eventually declared a mistrial because the jurors could not agree on a verdict. It thus appears that appellant’s testimony may have swayed some jurors.
Appellant testified immediately after the State closed. One plausible reason for counsel’s allowing appellant to testify is that (1) as shown by appellant’s testimony and his counsel’s closing argument, appellant’s theory of the case was that someone had planted the forged card in his wallet to frame him, not that the card was not forged; (2) of the witnesses present, only appellant could testify in support of that theory; and (3) appellant’s testimony about “having the fake SSN card” may have swayed some jurors in the first trial. If appellant testified in support of his “framing” theory in the second trial, the State could impeach him on rebuttal or cross-examination with his prior inconsistent statement to Deputy Foose. See Tex. R. Evid. 613(a), 801(e)(2)(A). If, by the time Deputy Foose testified, the decision had been made for appellant to testify to being “framed,” counsel could have decided not to object to the deputy’s above-quoted testimony because the deputy’s testimony as to the statement’s existence and its content would have been admissible for impeachment on rebuttal. This is a plausible trial strategy, at least, whether or not it was counsel’s actual strategy. And that plausible strategy, which focused on the content of appellant’s statement to the deputy, would not necessarily have been inconsistent with counsel’s one earlier objection to the asking of a “legal question,” which focused on the deputy’s opinion based on appellant’s statement. In any event, because we can imagine at least one trial strategy, this is not one of those rare situations that shows deficient performance in the absence of evidence of counsel’s actual strategy. Compare Robinson, 16 S.W.3d at 813 n.7.
4. Offering the Entire Offense Report
Appellant next argues that counsel was deficient for admitting the entire offense report, which referred to an extraneous offense and also a statement by appellant showing intent.
Counsel repeatedly tried to cross-examine Deputy Foose by asking whether the offense report recited that the second Social Security card was appellant’s. Each time, the trial court sustained the State’s objection to testifying to a document not in evidence and to improper impeachment. After one such objection, the following discussion occurred:
Counsel:I am just—I would like to admit the offense report for the limited purpose of.
Court:There is no limited purpose. It’s admitted or not admitted.
Counsel:An offense report is not technically admissible.
State:If you wish to admit it, I will not object.
Finally, counsel moved to admit the entire report.
Counsel then had the deputy read from the report that the second card was confirmed as appellant’s, even though appellant had claimed that it was not his. On cross-examination, the State had the deputy read from the report that “the defendant stated he had bought the [first] card . . . from a friend for $800 but could not produce his name.” The report also stated that appellant was at the police station on an outstanding assault warrant, although this information was not published to the jury.
We hold that appellant has not met his burden of showing harm under the second prong of Strickland. Appellant does not complain on appeal that trial counsel was ineffective for allowing the deputy to testify that “due to . . . something else the defendant had told me himself, it came to my conclusion that he was going to use it for possibly illegal purposes.” We have also already held that appellant has not shown that counsel was ineffective for allowing the deputy to testify shortly afterwards that appellant “stated to me about [the first card’s] being forged.” (Emphasis added.) The offense report conveyed the same information, albeit in more detail. Additionally, nothing shows that the extraneous assault offense was published to the jury or that the jury requested the report during deliberations, and the State did not mention the extraneous assault offense during argument. See Tex. Code Crim. Proc. Ann. art. 36.25 (Vernon 1981) (“There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.”); Novak v. State, 837 S.W.2d 681, 685 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (holding no harm shown under Strickland for counsel’s admitting offense report that contained prior convictions because, among other reasons, nothing showed jury read report or that report was sent to jury, State did not mention prior convictions in argument and briefly asked only one witness about them, and defense counsel made only one, oblique reference to the convictions in closing argument).
For these reasons, we overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Alcala, and Price.
Do not publish. Tex. R. App. P. 47.4.