Opinion issued May 26, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00181-CR
DERRICK DUANE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 906927
MEMORANDUM OPINION
Appellant, Derrick Duane Jones, pleaded not guilty to the offense of murder. The jury found appellant guilty, and the trial court assessed punishment at 45 years in prison. No motion for new trial was filed. Appellant presents four issues on appeal. In his first three issues, appellant asserts that the trial court erred in denying his trial counsel's requests for production of witness "statements" for use during cross-examination. In his fourth issue, appellant claims his counsel provided ineffective assistance of counsel. We affirm.
BACKGROUND
At 1:04 a.m. on January 12, 2004, complainant, Michael Swain, drove a Ford Explorer into the Mobil gas station at the intersection of T.C. Jester and West Tidwell. At about the same time, two men in a white Mitsubishi Gallant pulled into the gas station and parked in front of the front entrance. A heavy-set man, who was a passenger in the Mitsubishi, argued with Swain and got a handgun out of the Mitsubishi and pointed it at Swain. The heavy-set man put down the handgun and engaged in a fist fight with Swain. As they were fighting, the driver of the Mitsubishi, a tall, slim man, picked up the handgun and shot Swain in the back, chased him as he ran, and shot him again in the back of the head, killing him.
Rubra Mark LeBlanc, the manager of the Mobil station, and three other witnesses, Victor Alvarez, Emanuel Martinez, and Roy Demouchette, testified that they observed the argument and fight between the heavy-set man and Swain and saw the tall, slim man shoot Swain. LeBlanc, Alvarez, and Demouchette identified appellant at trial as the tall slim man who shot Swain. All four testified that they had previously identified the heavy set man, Thomas Lamont Kennedy, from a photospread. Alvarez and Demouchette testified that they had also picked out appellant from a photospread.
Thomas Lamont Kennedy testified that he was the heavy-set man who fought with Swain at the Mobile station and that appellant was driving the white Mitsubishi that night. Kennedy testified that he had taken a handgun out of the Mitsubishi, but thought better of it and set it down. According to Kennedy, he passed out while being beaten by Swain and did not see appellant shooting Swain, but, after they drove away in the Mitsubishi, appellant told him that he "had to shoot Mike."
Appellant's wife, Angela Gilmore, testified as an alibi witness for the defense. According to her testimony, appellant had taken her to the hospital earlier that night and was with her at the time Swain was killed. During cross-examination, she admitted that she had rented a white Mitsubishi on the day Swain was killed, but maintained that appellant had only driven the car when he took her to and from the hospital and pharmacy. Appellant also testified that he had taken his wife to the hospital and pharmacy in the rented Mitsubishi, and was at home with her at the time Swain was killed.
DISCUSSION
Cross-examination of witnesses with their prior statements
In his first three issues, appellant asserts that the trial court abused its discretion in denying his trial counsel's requests to "cross-examine three witnesses on statements they made to the police." Specifically, appellant complains of the trial court's denial of his trial counsel's requests "under Rule 615 of the Rules of Evidence" for the portions of "the police report where the officer has rendered into writing any oral statement" that LeBlanc, Alvarez, and Martinez made. Appellant's counsel made three separate requests, immediately after the State concluded its direct examination of each witness. Appellant's counsel also requested that the State produce a copy of a written statement LeBlanc said he had given to his employer.
The pertinent sections of Rule 615 of the Texas Rules of Evidence provide as follows:
(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
. . . .
(f) Definition. As used in this rule, a 'statement' of a witness means:
(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness:
(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; . . . .
Tex. R. Evid. 615. At trial, the State indicated to appellant and the court that it had the written statement LeBlanc had given the police, but was not in possession of the statement he gave to his employer. Under Rule 615(a) the State is not required to procure and produce a statement that it does not possess. Appellant admits that the State tendered the written, sworn statements of LeBlanc, Alvarez, and Martinez, and that the State made the audiotape of LeBlanc's statement available, but complains in this appeal that his counsel had to cross-examine each of these witnesses without the benefit of "the police detective's rendition" of the statement each had given.
Appellant did not ask the trial court to include the police report in the record and does not complain in this appeal about the report's absence from the record. (1) Appellant bears the burden to provide a sufficient record to demonstrate error requiring reversal. Tex. R. App. P. 50(d). Without the requested portions of the police report before us, we are not able to determine whether the police report contained the "statements" of witnesses as defined by rule 615(f)(1), (2). See Williams v. State, 940 S.W.2d 802, 805 (Tex. App.--Fort Worth 1997, pet. ref'd).
Having failed to provide a sufficient record to demonstrate whether the trial court erred, appellant has failed to preserve any error for our review. See id. at 805-06; see also Tex. R. App. P. 52. We overrule appellant's first three issues.
Ineffective assistance of counsel
In his fourth issue, appellant asserts two reasons why his trial counsel provided ineffective assistance in the guilt-innocence phase of the trial. First, appellant contends that his trial counsel "allowed the State to elicit testimony from the appellant on cross-examination about extraneous un-adjudicated [sic] offenses, and did not request an immediate limiting jury instruction, preventing appellant from receiving a fair trial." Second, appellant asserts that, when his counsel sought a continuance in order to recall Demouchette, he did not preserve error because he did not tell the trial court the reasons why Demouchette's further testimony was necessary.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). 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) but for the counsel's error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. "Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Our review of appellant's trial counsel's performance must be highly deferential. Strickland, 466 U.S. at 690, 104 S. Ct. at 2065. We determine the reasonableness of counsel's challenged conduct in context and view it as of the time of counsel's conduct. Id. We are to assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Bone, 77 S.W.3d at 833 n.13. The policy behind this assumption is that "[i]ntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Strickland, 466 U.S. at 690, 104 S. Ct. at 2065.
Appellant asserts that his counsel was ineffective because he "allowed" the State to cross-examine appellant on the following extraneous offenses: (1) appellant's delivery of drugs in "another drug related case," which was pending; (2) appellant's "jumping" the bond for a February 2003 arrest; and (3) appellant's involvement in the February 2003 "drug related case" for which he was arrested. The testimony appellant complains of was elicited in the following exchange between counsel for the State and appellant:
Q: [State's counsel] When were you first charged with this case?
A: [appellant] April.
Q: But you - - of 2002; correct?
A: Right.
Q: You weren't incarcerated until February of 2003; is that correct?
A: No, I was incarcerated before then, made bond.
Q: You were incarcerated again in February, 2003; correct?
A: Right.
Q: Why?
A: Because of a drug related case.
Q: So you picked up a drug case while you were out on bond?
A: Yes, ma'am.
Q: You actually forfeited your bond on a murder case?
A; Yes, ma'am.
Q: So you jumped bond?
A: No, ma'am. I - - I missing - - I got my court dates wrong. The next day when they called and said I missed, I came and turned myself in.
Q: And also because you were actually - - because you were actually put in jail for the new case?
A: No, ma'am. I missed a court date that was scheduled for, I believe the 18th, or I don't - - I don't actually recall. But I think it was the 18th, I missed that court date. I called my bonding company, I called my lawyer, and I was advised to turn myself in because it was just a misunderstanding. So that's what I did.
Q: What part of town did you pick up the new drug case in?
A: I guess you would call it the northwest area.
Q: Do you remember the address?
[Appellant's counsel] Your honor, I'd object as not relevant to material issue in this case.
[Court to State's counsel] Well, if you can show me the relevance, I'll allow it. Otherwise, I sustain the objection.
Q: When did you pick up the new drug case?
A: February. February. The beginning of February.
. . . .
Q: Isn't it true you were arrested for delivery of [a] controlled substance at 6500 Tidwell?
A: Arrest warrant was issued; right.
Q: I'm asking you, were you arrested for delivering drugs at 6500 - - 6500 Tidwell?
A: No, I was not.
Q: Where were you when you delivered the drugs?
A: That - - that is a case that is pending, that I am fighting.
Q: But that's when you were arrested; right?
A: No, ma'am.
Q: So there was another time you were charged with a drug case?
A: Yes, ma'am.
[Appellant's council] I object to another drug case as not relevant to any material issue in this case.
[Court] Sustained.
The recited testimony demonstrates that appellant's counsel's objection to testimony regarding "another drug case" was sustained, despite appellant's answering "Yes, ma'am" before the objection was made. (2) Thus, appellant's complaint regarding the second drug case is without merit because, as to evidence of that extraneous offense, the trial court gave him the relief--sustaining his objection to that evidence--that he now asserts he was denied.
Regarding the State's counsel's questioning appellant about the forfeiture of his bond, it is well settled that a defendant's failure to appear at a previous setting of his case and the forfeiture of his bond is properly admissible as evidence to show flight, which can be construed as inferential evidence of guilt. Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987) (noting that "flight, in the context of bail-jumping, may be construed as evidence of guilt"); Aguilar v. State, 444 S.W.2d 935, 938 (Tex. Crim. App. 1969) (holding that trial court was not required to limit use of evidence of bond forfeiture). The prosecutor's inquiry into the bond forfeiture was a legitimate inquiry into a properly admissible area. Because an objection, or a request for a limiting instruction, would have been properly denied, we cannot say that appellant's counsel was deficient by failing to object to inquiry into the bond forfeiture.
Appellant also asserts that his counsel's failure to object to, or request a limiting instruction on the use of the testimony regarding his alleged delivery of drugs in February 2003 "is not an issue of counsel's trial strategy." Finally, appellant contends that "there is no reasonable trial strategy that could account for the error" of his counsel in not providing the trial court with the reasons why Demouchette's further testimony was needed.
In this case, the record is silent as to why appellant's trial counsel took, or failed to take, the actions appellant asserts are proof of ineffective assistance of counsel. Appellant has not overcome the strong presumption that his counsel's conduct falls within a wide range of reasonable professional assistance and might be considered sound trial strategy. See Bone, 77 S.W.3d at 836. To find that appellant's counsel was ineffective based on the stated grounds would call for speculation, in which we will not engage. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Lumpkin v. State, 129 S.W.3d 659, 665 (Tex. App.--Houston [1st Dist.] 2004, no pet.).
We overrule appellant's fourth issue.
CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Jennings, and Alcala.
Justice Jennings, concurring.
Do not publish. Tex. R. App. P. 47.2(b).
1. The written statement LeBlanc said he gave to his employer is also not included in the record, nor did appellant seek its inclusion at trial.
2. From the record before us, we cannot tell if appellant blurted out "Yes, ma'am" without giving his counsel time to object, which the record reveals he did immediately thereafter. We cannot, therefore, as appellant would have us do, assume that counsel erred. Additionally, as the discussion following explains, appellant must overcome the presumption that, even if his counsel erred, there was a strategic reason for failing to object and for failing to request a limiting instruction. This is an example of how the record on direct appeal is generally inadequate to support these assertions.