Opinion issued September 24, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00088-CR
DOMINIQUE MURCHISON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1169981
MEMORANDUM OPINION
The State indicted Dominique Jerell Murchison for felony assault to a family member for causing bodily harm to his wife, Nina Murchison. Tex. Penal Code Ann. § 22.01(b)(2) (Vernon 2003). He pleaded guilty, and in accordance with the State’s recommendation, the trial court assessed punishment at five years’ deferred adjudication and community supervision. Murchison later violated the terms of the community supervision, and the State moved to adjudicate guilt. The trial court granted the State’s motion and sentenced Murchison to five years’ confinement and a $500 fine. Murchison appeals, contending that (1) the trial court erred in admitting, during the punishment phase, State witness Nina Murchison’s testimony about the circumstances giving rise to Murchison’s prior criminal offense and guilty plea; and (2) his trial counsel was ineffective in failing to object to Nina’s testimony regarding an unrelated shooting incident and in failing to cross-examine her on this testimony. We affirm the judgment of the trial court.
Background
In October 2008, Murchison pleaded guilty to the offense of family violence assault as a second-time offender and received a five-year deferred adjudication with community supervision. One stipulation of his community supervision was that he avoid all contact with Nina Murchison, the complainant in the assault and his former wife. Murchison and Nina had been married for two years and have a young son together.
On December 9, 2008, the trial court granted the State’s motion to adjudicate guilt based on Murchison’s alleged contact with Nina, which constituted a violation of the conditions of his community supervision. At the hearing on the motion to adjudicate, Nina testified that Murchison contacted her on numerous occasions. According to Nina, Murchison called and sent text messages to her on several instances in October and November 2008. On October 30, Murchison sent her a flower arrangement and card, and on November 2, he had a face-to-face meeting with her in a store parking lot. Nina further testified that she never called or sent text messages to initiate any conversation. In contrast, Murchison testified that he had never contacted Nina in any form and that the phone number which Nina alleged belonged to him belonged to a phone not in his possession. Murchison further testified that Nina had come to see him in person on November 2 and November 25, and both times he avoided her. Murchison also stated that Nina had sent unsolicited e-mails and text messages to him on several occasions. Several witnesses, all Murchison’s family members, testified that they had witnessed Nina’s attempts to contact Murchison.
Nina also testified about the details of Murchison’s prior misdemeanor conviction for assault of a family member, arising out of an incident in which Murchison ripped Nina’s clothing off, pushed her down, dragged her by her hands and hair to the bathroom, and threw her in the shower. Murchison was placed on probation for this assault. Defense counsel objected to this testimony, but the trial court overruled the objection. Nina also testified that she asked an investigator to provide her with transportation to the hearing because she was frightened, due to a recent incident in which her father was shot. Immediately thereafter, the State’s counsel asked Nina if she was afraid of Murchison, and she said yes. Defense counsel did not object to this testimony or cross-examine Nina on this matter.
Discussion
Admissibility of Nina’s Testimony
Murchison contends that the trial court erred in overruling defense counsel’s objection to Nina’s testimony regarding the circumstances of Murchison’s prior assault offense because it was not relevant and therefore inadmissible. Murchison contends that had this testimony not been admitted, he would not have been adjudicated guilty.
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996). Where the trial court’s evidentiary ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the reviewing court must uphold the trial court’s ruling. Id. All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid. 401. After a defendant has been found guilty, the State may offer evidence about the defendant “as to any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2006). Relevant evidence in this context is any evidence that assists the fact-finder in determining the appropriate sentence given the particular defendant in the circumstances presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). The statutory language grants wide latitude in the admission of evidence deemed relevant. Contreras v. State, 59 S.W.3d 362, 365 (Tex. App.—Houston [1st Dist.] 2001, no pet.). We will not disturb a trial court’s determination regarding the admissibility of relevant evidence in the absence of an abuse of discretion. See Green, 934 S.W.2d at 101–02.[1]
Section 3 of Article 37.07, entitled “[e]vidence of prior criminal record in all criminal cases after a finding of guilty,” applies to punishment hearings after a trial court grants a motion to adjudicate guilt. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2006) (emphasis added) (“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered . . . as to any matter the court deems relevant to sentencing.”); see also Rivera v. State, No. 01-07-00339-CR, 2008 Tex. App. LEXIS 4389, at *10–11 (Tex. App.—Houston [1st Dist.] June 5, 2008, no pet.) (mem. op., not designated for publication) (applying art. 37.07 § 3(a)(1) to extraneous offense evidence admitted during the punishment phase of a hearing to adjudicate guilt following a deferred adjudication). The Code of Criminal Procedure further provides that after a judge adjudicates guilt, “all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2006). Since punishment hearings after a deferred adjudication of guilt follow the same procedural rules as punishment hearings after jury trials, the same rules governing the admission of evidence apply to both. Thus, evidence deemed relevant to sentencing and admissible under Section § 3(a) can be admitted during both the punishment phase of a jury trial and the punishment phase of a deferred adjudication.
Murchison argues that Nina’s testimony was not relevant because it went beyond the mere fact of his prior criminal offense and detailed its circumstances. Murchison argues that Section § 3(a) lists “the circumstances of the offense for which he is being tried” as an example of relevant evidence, but under this rule, the circumstances of prior offenses are not relevant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2006) (emphasis added). The statute lists evidence relevant to sentencing as:
[I]ncluding but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Id. The 2007 assault is a prior crime, and Nina’s testimony thus is admissible as “evidence of an extraneous crime,” as the statute allows. Evidence of prior crimes, including the circumstances of prior crimes, is relevant in that it may assist the fact-finder in determining the appropriate sentence. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008). Nina’s testimony regarding the prior assault is relevant punishment evidence because it illustrates Murchison’s propensity for family violence and that he was not deterred by his earlier conviction. See McClure v. State, 269 S.W.3d 114, 120 (Tex. App.—Texarkana 2008, no pet.) (finding that person’s history of violating law is relevant consideration when assessing sentence because it relates to defendant’s character); Fowler v. State, 126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) (holding that evidence of prior assaults was relevant to punishment phase because it demonstrated pattern of conduct and assisted jury in tailoring sentence to defendant). Murchison argues that without this testimony, he would not have been adjudicated guilty. This evidence, however, was admitted during punishment, only after Murchison was adjudicated guilty. The evidence of Murchison’s violations of the terms of his community supervision is sufficient to support revocation of his deferred adjudication. Given the trial court’s broad discretion and wide latitude in determining the admissibility of evidence, we hold that the trial court did not abuse its discretion in admitting Nina’s testimony.
Ineffective Assistance of Counsel
Murchison contends that his trial counsel was ineffective because he failed to object to Nina’s statement that her father had been shot.[2] Murchison observes that the State questioned whether Nina was afraid of Murchison immediately after Nina’s statement about her father’s shooting. According to Murchison. This implies that he was involved in Nina’s father’s shooting. Murchison’s counsel did not ask Nina about the shooting or clarify whether Murchison was involved.
To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove by a preponderance of the evidence that his counsel’s representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Thompson, 9 S.W.3d at 812. In reviewing counsel’s performance, we examine the entire representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney’s performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. Furthermore, a claim of ineffective assistance must be firmly supported in the record. Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Murchison challenges defense counsel’s actions during the punishment phase of the trial. Strickland governs claims of ineffective assistance during the punishment phase. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Where the record is silent as to counsel’s trial strategy, the reviewing court presumes that counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Without testimony from trial counsel, we cannot meaningfully address trial counsel’s strategic reasons for the actions that Murchison alleges constitute ineffective assistance. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding that without testimony from trial counsel, the reasons for counsel’s actions cannot be meaningfully addressed).
Nina testified:
Q: Okay. How did you get here today?
A: I had one of the investigators pick me up.
Q: Why?
A: Because I feared–my father was shot last Thursday.
Q: Are you scared of your husband?
A: Yes.
Murchison argues that counsel’s failure to object as to the relevance of Nina’s testimony about the shooting incident allowed the trial court to improperly infer that Murchison was involved in the shooting. But nothing in the punishment hearing links Murchison to this shooting—rather, it was offered as an explanation for arranging for an investigator, presumably instead of her father, to accompany her to the hearing. We cannot conclude that defense counsel’s conduct fell below reasonable professional standards based on this record. Murchison fails to show, moreover, that the outcome would have been different had counsel objected to Nina’s statement. Nina’s testimony as to Murchison’s numerous contacts was sufficient to establish Murchison’s violations, regardless of the shooting testimony. Murchison fails to show a reasonable probability that the outcome of his punishment hearing would have been different but for his counsel’s failure to object and cross-examine.
Murchison relies on Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991), for the proposition that a single egregious error of omission or commission may constitute ineffective assistance of counsel. Unlike this case, however, the record in Felton reflected the trial counsel’s reasoning for his actions, and thus was sufficiently developed for a full Strickland analysis. Id. Also unlike this case, the error in Felton—failing to know the law and failing to investigate a prior conviction—was egregious. See id. at 736. We hold that Murchison has not established that his trial counsel’s performance fell below a reasonable professional standard, nor that the outcome of his trial would have been different but for counsel’s alleged errors.
Conclusion
We hold that the trial court did not abuse its discretion in admitting evidence during the punishment phase about the circumstances relating to Murchison’s earlier conviction for family violence. We also hold that Murchison failed to prove that his trial counsel rendered ineffective assistance of counsel. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.4
[1] Murchison failed object on the ground that the probative value of the evidence was outweighed by the danger of unfair prejudice, so an analysis of the testimony’s probative value and danger of prejudice is unnecessary. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990).
[2] Murchison also complains that his counsel was ineffective because the trial court admitted Nina’s testimony regarding the circumstances of the prior assault. Trial counsel, however, timely objected to this testimony, and we have held that the trial court did not err in admitting it. Thus, counsel was not ineffective in this regard.