Opinion issued on April 8, 2004.
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00083-CR
ERRICK WAYNE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd Criminal District Court
Harris County, Texas
Trial Court Cause No. 910718
MEMORANDUM OPINION
A jury found appellant, Errick Wayne Johnson, guilty of murder and found that the murder was not the result of sudden passion. After finding an enhancement true, the jury assessed punishment at confinement for 50 years. In three points of error, appellant contends that his trial counsel was ineffective by (1) failing to object to the evidence that appellant stabbed someone in addition to the complainant, (2) failing to request an instruction limiting the jury’s consideration of the other stabbing, and (3) failing to make a Batson challenge. We affirm.
Background
For approximately three years, appellant lived with the complainant, Wanda Quinney, and her two sons, C.J. and B.J. At approximately 10:00 p.m., on May 2, 2002, C.J. heard a loud thump against a bedroom wall followed by the complainant’s screaming. C.J. broke through the locked bedroom door and saw the complainant in a closet being struck by appellant. C.J. ran towards appellant and hit him in the back of the head with his fist. After a brief struggle, appellant threw C.J. into the closet and, holding a knife, stabbed at C.J., cutting him twice. Appellant then dragged the complainant from the closet and threw her against the wall. Afterwards, he disconnected and destroyed phone lines and a cell phone.
The complainant took C.J. into the bathroom to treat his knife wounds. She told C.J. to get an extra phone cord out of a closet, connect it to a phone, and call 911. Avoiding appellant’s sight, C.J. succeeded in calling 911. He told the operator that “there’s a man in our house, he has a knife, and he’s trying to kill me and my mother.” C.J. then joined his mother and appellant in the dining room where the confrontation had quieted down.
Officers knocked on the door in response to the 911 call. C.J. said that he knew who stood at the door and would answer it, but the complainant told him that she would answer the door instead. When the complainant opened the door, appellant violently slammed the door on her arm. As the officers attempted to push open the door, appellant stabbed the complainant twice in the heart, causing her death.
Ineffective Assistance of Counsel
In three points of error, appellant contends that his trial counsel was ineffective by (1) failing to object to the evidence that appellant stabbed someone other than the complainant, (2) failing to request an instruction limiting the jury’s consideration of the other stabbing, and (3) failing to make a Batson challenge.
Standard of Review
Strickland v. Washington sets out the standard of review for evaluating claims of ineffective assistance of counsel. 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). 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, i.e., sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983); Jaenicke v. State, 109 S.W.3d 793, 797 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813. In so doing, we recognize the strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813.
The defendant bears the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The defendant’s burden is even more difficult when, as in this case, the defendant does not file a motion for new trial asserting ineffective assistance of counsel. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). An appellate court will not find ineffectiveness based on speculation. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
Failure to Object
In his first point of error, appellant contends that, because the testimony introduced an extraneous offense, his trial counsel should have objected to C.J.’s testimony that appellant stabbed him twice in the events leading up to the complainant’s death. To be admissible, extraneous offense evidence must be relevant apart from indicating mere character conformity, that is, it must tend to establish some elemental or evidentiary fact or rebut some defensive theory. Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386–87 (Tex. Crim. App. 1991) (op. on reh’g); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). An extraneous offense is admissible to prove the culpable mental state required for the charged offense if the required intent cannot be inferred from the act itself, or if the accused presents evidence to rebut that inference. Johnson v. State, 932 S.W.2d 296, 303 (Tex. App.—Austin 1996, pet. ref’d)
Appellant argues that the fact that he stabbed C.J. is not relevant because the sole issue at trial was whether appellant intended to kill the complainant. Appellant argues that C.J.’s stabbing was not probative because (1) he did not argue that stabbing the complainant was a mistake or accident, (2) identity and motive were not at issue, and (3) C.J.’s stabbing was not the same transaction contextual evidence or res gestae of the offense. Appellant further argues that any probative value from the extraneous offense evidence is substantially outweighed by the danger of unfair prejudice.
The State responds that this extraneous offense evidence is admissible to show appellant’s intent to kill and to rebut appellant’s defensive theory that the complainant’s death was not intentional but only reckless. The State also maintains that the evidence was admissible to show the same transaction contextual evidence.
The State charged appellant with murder, and appellant defended the charge on the theory that he was not guilty of murder but guilty of manslaughter. Appellant’s attorney argued that, “If you read the law carefully, and look at it, [appellant] is guilty of recklessly causing the death of [the complainant].” The jury charge gave the jury the option of finding appellant guilty of the lesser offense of manslaughter.
In taking the position that appellant’s acts were merely reckless, appellant placed his intent at issue and offered a defensive theory. Thus, the extraneous offense of appellant stabbing C.J. was admissible. See Johnson, 932 S.W.2d at 302. An attorney’s failure to object to admissible testimony does not constitute ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992); Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d).
We overrule appellant’s first point of error.
Limiting Instruction
In his second point of error, appellant contends that his trial counsel was ineffective for failing to request a limiting instruction regarding C.J.’s stabbing.
Unless appellant indicates that counsel’s ineffectiveness is firmly founded in the record, we presume that the challenged action was sound trial strategy. See Gamble, 916 S.W.2d at 93; Bone, 77 S.W.3d at 835. Appellant argues that a limiting instruction “would have limited the jury’s consideration of the extraneous offense to its proper purpose, whatever that was.” Appellant does not indicate for what purpose his attorney should have requested a limiting instruction.
Because appellant did not file a motion for new trial, the record does not reveal why appellant’s counsel chose not to request a limiting instruction. Accordingly, appellant failed to defeat the strong presumption that the decisions of counsel during trial fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. Gamble, 916 S.W.2d at 93.
We overrule appellant’s second point of error.
Batson Challenge
In his third point of error, appellant contends that his trial counsel was ineffective for failing to make a Batson challenge.
Appellant requests that we abate this case for a Batson hearing, yet he cites no authority in support of his request. Further, appellant admits that he cannot demonstrate that the result of the trial would have been different, as Strickland requires, but asks us to remand for the trial court to conduct a Batson hearing. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We hold that, because appellant cannot meet the second prong of Strickland, we cannot conclude that his trial counsel’s actions were ineffective. See id.
We overrule appellant’s third point of error. Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Alcala, Hanks, and Bland.
Do not publish. Tex. R. App. P. 47.4.