Opinion Issued November 26, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00909-CR
JOHNNY FLOWERS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 272nd District Court
Brazos County, Texas
Trial Court Cause No. 28,502-272
O P I N I O N Johnny Flowers, Jr., appellant, was charged with felony driving while intoxicated (DWI). The jury found appellant guilty. The trial court, after finding two enhancement paragraphs true, assessed punishment at 50 years’ confinement. In 12 issues presented for review, appellant argues that his trial counsel was ineffective. We affirm.
Background
On December 6, 2000, at approximately 7:30 in the evening, appellant slammed the Mazda Protege vehicle he was driving into a parked red Ford pickup truck in a residential area where cars were parked on both sides of the street. At the time of the crash, Meggan Bradford, the owner of the parked car, was inside a friend’s apartment along with some other friends. They heard a loud bang and ran outside. Outside the house, they noticed that a Mazda Protege, dragging metal behind it, was slowly limping its way up the street. Jason Holmes, a friend of Bradford, reached the driver’s door of the Protege, saw appellant, and helped him out of the car. Both Holmes and Bradbury observed that appellant was disoriented, but they testified that they were unsure whether it was from intoxication or from having been in a recent automobile accident.
When the police arrived to investigate, Officer Brown of the College Station Police Department began talking to appellant. At the scene, appellant admitted to being the driver of the Protege that hit the Ford pickup. While talking to appellant, Brown noticed that an alcohol odor emanated from appellant’s breath, that appellant’s eyes were red and glassy, and that his speech was slurred.
Officer Brown then administered the horizontal gaze and vertical nystagmus tests, to which appellant exhibited all six indicia of intoxication. Appellant was unable to complete the one-leg stand sobriety test and was unable to retain his balance on the nine-step walk-and-turn task. After completing the tests, appellant told Brown that he had consumed only two beers. Flowers was then arrested. At the police station, appellant refused to take either a breath or blood test to determine his alcohol level. Discussion
Standard of Review
In 12 issues presented for review, appellant complains of ineffective assistance of counsel during the guilt/innocence stage of his trial. In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). First, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel’s performance deviated from prevailing professional norms. Id.. Second, the defendant must show prejudice. This requires the defendant to show that there is a reasonable probability that, but for his 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. The failure to satisfy one prong of the Strickland test negates a court’s need to consider the other. Id. at 697, 104 S. Ct. at 2069. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
We cannot speculate beyond the record provided. Rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). Appellant must overcome the presumption that trial counsel’s strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813-14.
Ineffective Assistance of Counsel Issues
Prior DWI Convictions
In his first four issues presented for review, appellant argues that he was denied effective assistance of counsel by his trial counsel’s failure to prevent the jury from learning of his prior DWI convictions. All four issues are governed by the recent Court of Criminal Appeals decision in Hollen v. State, No. 1592-02 (Tex. Crim. App. Sept. 10, 2003).
In Hollen, the Court of Criminal Appeals addressed whether the jury should be informed of a defendant’s stipulation to two prior DWI convictions and whether the stipulation itself was admissible. Id., slip op. at 2. The facts of Hollen are quite similar to the present case. In Hollen, appellant was indicted for felony DWI, and the indictment contained allegations of two prior DWI convictions, to which appellant provided a stipulation. Id., slip op. at 2. Although the State refrained from introducing any extrinsic evidence of the convictions stipulated to by appellant at trial, appellant argued that the State should not have been permitted to mention the prior convictions, including the stipulation, at any time. After appellant’s objections were overruled, the indictment allegations regarding the prior convictions were read to the jury; the State referenced the prior convictions in voir dire, opening statement, and closing argument; the stipulation was admitted into evidence; and the jury charge mentioned the prior convictions along with a limiting instruction. Id.
The Court of Criminal Appeals noted that prior case law had (1) emphasized that the two prior convictions are jurisdictional elements that must be proved in order to convict a defendant for felony DWI, and (2) suggested that the jury should be informed of the stipulation because the prior convictions stipulated to must be proved to establish and prove felony DWI. Hollen, No. 1592-02, slip op. at 6-7; see Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003); Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001). Therefore, the Court concluded that the jury could be informed of the stipulation and the stipulation could be admitted into evidence. Hollen, No. 1592-02, slip op. at 7. Furthermore, “since the two prior offenses were validly mentioned in the indictment and validly introduced into evidence via the stipulation, there was likewise no error in the jury instructions [referring to the two prior convictions], and the prior convictions were the legitimate subject of voir dire, opening statements, and closing arguments.” Id. at 7-8. In the present case, appellant contends that his trial counsel was ineffective because he (1) failed to prevent the State from mentioning to the venire that appellant was charged with a felony DWI offense and had two prior DWI convictions, (2) failed to object to the State’s reading of the DWI enhancement paragraphs to the jury at the beginning of the trial, (3) failed to object to the State’s publication to the jury of appellant’s stipulation to the DWI enhancements, and (4) failed to object to the mention of the DWI enhancements in the jury charge. However, all of these points can be dismissed under Hollen because, even if counsel had objected, the trial court would not have erred in admitting the testimony or evidence. Therefore, appellant cannot demonstrate counsel’s performance fell below an objective standard of reasonableness on this basis.
We overrule appellant’s first through fourth issues.
We affirm the judgment of the trial court.
Publish. Tex. R. App. P. 47.
The remaining portion of the opinion does not meet the criteria for publication and is ordered unpublished. See Tex. R. App. P. 47.
Range of Punishment During Voir Dire
In his fifth issue, appellant argues that trial counsel was ineffective for failing to object to the prosecutor’s voir dire examination on graduated ranges of punishment when appellant had elected to be punished by the court. However, the record is silent as to trial counsel’s reasons for proceeding as he did. We will not reverse a conviction on ineffective assistance grounds when counsel’s actions or omissions may have been based on strategic decisions and the record fails to provide an explanation for the decisions. Rylander, 101 S.W.3d at 110. We overrule appellant’s fifth issue.
Questioning Venire About Limiting Instruction
Appellant’s sixth issue contends that trial counsel was ineffective for failing to ask the venire members if they would be able to follow a limiting instruction concerning appellant’s two prior DWI convictions. Here, the record is silent as to trial counsel’s reasons for proceeding as he did. We will not reverse a conviction on ineffective assistance grounds when counsel’s actions or omissions may have been based on strategic decisions and the record fails to provide an explanation for the decisions. Id. We overrule issue six.
Instruction to Jury Regarding Prior DWIs
In his seventh issue, appellant argues that counsel was ineffective for failing to request an instruction to the jury not to consider the DWI prior convictions as evidence of guilt. Although counsel did not request a limiting instruction after the evidence was admitted, the court provided one in the charge. The court’s charge included the following limiting instruction: “With respect to the evidence admitted in this case concerning the defendant’s having been twice convicted of the offense of driving while intoxicated, you are instructed that such evidence cannot be considered by you in any manner as proving or tending to prove that the defendant did drive or operate a motor vehicle in a public place while intoxicated on or about the 7th day of December, 2000.” Appellant has not satisfied the Strickland test. We overrule appellant’s seventh issue.
Opening Statement
In issue eight, appellant claims trial counsel was ineffective for failing to make an opening statement. The record reveals that appellant’s trial counsel did make an opening statement immediately after the state’s opening. We overrule issue eight.
Offer of Proof
In his ninth issue, appellant contends that trial counsel was ineffective for failing to make an offer of proof of the testimony of appellant’s nephew, Demarcus Flowers, to preserve the issue for appeal. Appellant’s defensive theory was that appellant’s behavior was not caused by alcohol but by an injury received in the car accident. Appellant’s trial counsel wanted to introduce appellant’s statement made to the arresting officer at the scene of the accident through the testimony of Demarcus Flowers. In his brief, appellant contends that Demarcus Flowers would probably have testified that appellant told the officer that “he had hit his head in the accident and was experiencing some problems with equilibrium, normal thought process, or the like.” Appellant’s assertions of what Demarcus Flowers would have said in the offer of proof is not in the record. We do not consider evidence outside the record. The record establishes only that the State’s hearsay objection was sustained. Appellant argues the testimony was admissible and that trial counsel’s failure to take the necessary steps to preserve this complaint for appeal constitutes ineffective assistance. Appellant’s claim must fail because he presents no evidence to overcome the strong presumption that his counsel’s failure to make an offer of proof as to the proposed testimony was strategic and, therefore, within the wide range of reasonable representation. We overrule appellant’s ninth issue.
Impeachment Testimony
In issue 10, appellant claims trial counsel was ineffective for failing to object to impeachment evidence or for failing to request a limiting instruction regarding the impeachment of Demarcus Flowers. Appellant argues that trial counsel allowed the State to impeach Demarcus Flowers with irrelevant evidence that he was currently serving time in a state jail facility.
On direct examination, Demarcus Flowers testified that, when he arrived at the scene of the accident, appellant told him that he had an accident and hit his head and was dizzy. Demarcus Flowers also testified that he was currently serving a state jail sentence and he noted that he was not receiving any benefit from testifying at appellant’s trial. On cross-examination, the State impeached Demarcus Flowers with his own testimony that he was serving time in a state jail facility for a felony conviction of possession of a controlled substance. Evidence of a felony conviction may be offered, as it was here, to impeach the credibility of a witness if the probative value outweighs the prejudicial effect of the evidence. Tex. R. Evid. 609(a); see Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). In the present case, even if the prejudicial effect of the impeachment evidence did outweigh its probative value, a trial counsel’s isolated failure to object to inadmissible evidence does not amount to ineffective assistance of counsel. Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. 1982).
Finally, when it is clear that testimony is being used only for impeachment purposes, no limiting instruction is necessary. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987). Here, it was clear the State was simply impeaching Demarcus Flowers with his prior felony conviction. As a result, no limiting instruction was necessary, and appellant’s trial counsel was not ineffective. We overrule appellant’s tenth issue.
Rebuttal of a Defense Witness
In his eleventh issue, appellant argues that he was “denied effective assistance of counsel by his trial attorney’s failure to object to the prosecutor’s rebuttal of a defense witness with statements from an affidavit, in violation of the hearsay rule and appellants right to confront and examine witnesses.” However, appellant fails to cite to the record where this occurred. The failure to cite to the record presents nothing for review on an ineffective assistance claim. See Thompson v. State, 915 S.W.2d 897, 906 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). We overrule appellant’s eleventh issue.
Jury Argument
In his twelfth issue, appellant asserts that trial counsel was ineffective for failing to object to the State’s improper jury argument. In particular, appellant objects to the following prosecutorial argument:
The issues—you have to decide because you made—he made a decision last December when he had too much to drink to get in that car and drive, okay? So now you get to make the decision, and your decision is: Would you have wanted him behind the wheel of a car that night? From everything you heard from the officer, from everything you could see on the videotape, I encourage you to watch it, would you have wanted him behind that car? And if you would, then go ahead and find him not guilty, because that’s what you will be saying by your verdict. And Officer Brown will know what to do next time that he sees somebody in the condition Mr. Flowers was in–just let him go.
There are four permissible areas of jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the argument of opposing counsel, and (4) pleas for law enforcement. Cifuentes v. State, 983 S.W.2d 891, 895 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Appellant contends this was not a proper plea for law enforcement, and thus, trial counsel’s failure to object constitutes ineffective assistance of counsel. We disagree.
In its jury argument, the State may properly plead for law enforcement. This includes arguing the relationship between the jury's verdict and the deterrence of crime in general, arguing that juries should deter specific crimes by their verdicts, and arguing the impact of the jury's verdict on the community. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). A prosecutor may also argue that juries should deter specific crimes by their verdict. Id. at 55. On the other hand, the State is not permitted to argue that the community or any particular group in the community demands or expects a verdict of guilty or a specific punishment. Id.
In the present case, the State’s argument at issue constitutes a proper plea for law enforcement. Consequently, appellant has not shown that his counsel was ineffective. We overrule appellant’s twelfth issue.
Conclusion
We affirm the judgment.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
Publish in part. Tex. R. App. P. 47.