Opinion issued November 18, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-01128-CR
NO. 01-09-01129-CR
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Ray Freeman McChristian, Appellant
V.
The State of Texas, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case Nos. 08CR3563 & 08CR3564
MEMORANDUM OPINION
Appellant, Ray Freeman McChristian, appeals a judgment that convicts him of tampering with physical evidence, enhanced by two prior felony convictions, in appellate cause number 01-09-01128-CR, which is trial court cause number 08CR3563; and a judgment that convicts him for possession of cocaine weighing one gram or more but less than four grams, enhanced by two prior felony convictions, in appellate cause number 01-09-01129-CR, which is trial court cause number 08CR3564. See Tex. Pen. Code Ann. § 37.09(a)(2) (Vernon Supp. 2010); Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2010). A jury found him guilty of the offenses. Appellant elected to have the trial court assess punishment. Appellant pleaded not true to the first prior felony enhancement in both cases, and true to the second felony enhancement in both cases. The court found both enhancements true in both cases and assessed punishment at 30 years’ confinement for each of the cases. The trial court ordered the sentences to run concurrently.
In five issues on appeal, appellant contends that his trial counsel rendered ineffective assistance of counsel. He asserts his trial counsel’s assistance was ineffective because counsel failed to (1) request a limiting instruction, (2) request that the trial court conduct a Theus analysis prior to the entry into evidence of his prior convictions, (3) request a jury instruction on the legality of the initial traffic stop, and (4) adequately prepare him and his case for trial. Additionally, in his fifth issue, he contends the cumulative effect of counsel’s errors deprived him of his right to adequate counsel.
We affirm.
BACKGROUND
Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is needed.[1] Appellant’s conviction stemmed from a traffic stop after appellant committed two traffic violations. Once the police officers stopped appellant and shined a spotlight at his car, the officers noticed appellant placing something in his mouth and immediately drinking water. When the officers began interacting with appellant as he still sat in his car, they asked him to stop eating and drinking, but he refused. Eventually, Officer J. Durr squeezed appellant’s cheeks in an attempt to open appellant’s mouth and commanded that appellant spit out the substance in his mouth. Officer Durr testified that when he squeezed appellant’s cheeks, he felt something similar to rocks in appellant’s mouth and noticed a white substance on appellant’s lips. After a struggle, appellant released the contents from his mouth, which were crack rocks in a plastic baggie. The officers also found other crack rocks on appellant and in his vehicle.
When asked what his plea was for the possession charge at arraignment, appellant stated, “I haven’t really had a chance to discuss this with my attorney or any – any – he does not come and see me. And, you know, I’m not ready for no trial today.” The court entered a not guilty plea. Appellant replied, “Judge, I didn’t say I was not guilty, sir. I just said that I’m not ready for trial today because I haven’t had a chance to discuss with my attorney, sir.” In response, the court stated, “I’m sorry. This is the third trial setting for this case. And I notice that you’re out in the courtroom talking to him even today as in previous days.”
Appellant testified in his defense at trial. Prior to his testimony, the court admonished appellant about the consequences of testifying. On direct, appellant’s trial counsel asked whether appellant had ever been in trouble with the law. Appellant replied that he had been incarcerated twice. Trial counsel asked if appellant knew he was under oath and asked if he was going to tell the truth. Appellant responded affirmatively. Appellant proceeded to testify that he was inside a friend’s car when a man he knew as “Chicago” threw cocaine in his vehicle when the police appeared at the scene. Appellant testified that he did not commit any traffic violations before he was stopped, that he was not trying to eat or swallow the cocaine, and that he did not exercise any control over the cocaine.
Prior to cross-examining appellant, the State approached the bench and notified the court that it wished to impeach appellant’s credibility by asking about four prior felony convictions and his convictions for assaults against women. It argued to the court that appellant opened the door to his past convictions by noting he had “been in trouble before” and by discussing his incarceration. The State asserted that assaults against women constituted a crime of moral turpitude. Appellant’s counsel replied that he was unaware that assaults against women were crimes of moral turpitude, but also noted that he agreed the State was entitled to impeach appellant’s credibility. The court allowed the State to question appellant regarding any prior felony convictions, but regarding the assault convictions, limited the State to questioning appellant only on assaults against women. The State proceeded, and limited its cross-examination to three prior felony convictions for possession of a controlled substance, felony theft, and robbery, and one conviction for an assault against a woman.
Appellant also called Tiffany McNeal, a mother of one of his children, to testify in his defense. McNeal testified that she had been with appellant on the night appellant was arrested and stated that there had been no cocaine in the vehicle. McNeal denied ever hearing about the man named “Chicago”.
Appellant filed a motion for new trial, in which he asserted that the trial court should grant him a new trial in the interest of justice. Appellant also asserted that trial counsel rendered ineffective assistance because he failed to meet with appellant prior to trial. Furthermore, appellant contended trial counsel failed to adequately investigate his case because counsel did not investigate from where the cocaine originated and did not do enough to have a particular exculpatory witness, presumably “Chicago,” testify.
The trial court conducted a hearing on appellant’s motion for new trial. Appellant introduced county jail records that showed that trial counsel did not visit appellant at the county jail. Appellant introduced trial counsel’s trial file but did not call counsel to testify. On direct, appellant testified about his attorney-client relationship with counsel, highlighting what he believed were certain errors or omissions by counsel. He testified that trial counsel should have had “Chicago” testify as well as another witness, Iesa Ramos, who knew where “Chicago” might be found. On cross examination, appellant testified that he was aware that there were several settings in court prior to trial, admitted counsel had met with him multiple times at different procedural points in the case, and that after counsel discussed with him the ramifications of testifying, it was his choice to testify in his defense. He further noted that he did not know the real first or last name of “Chicago,” and that he did not know where “Chicago” lived nor his phone number. He noted that Ramos’s only contribution as a witness would be to testify regarding the location of “Chicago.” The trial court denied appellant’s motion for new trial, and this appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
Through five issues, appellant contends that his trial counsel rendered ineffective assistance at trial.
A. Applicable Law
The United States Supreme Court has established a two-pronged test for determining whether there was ineffective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Williams v. State, 313 S.W.3d 393, 399 (Tex. App—Houston [1st Dist.] 2009, pet. ref’d). To prevail on a claim of ineffective assistance of counsel under Strickland, an appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Williams, 313 S.W.3d at 399.
The first prong of the Strickland test requires that the defendant show that counsel’s performance fell below an objective standard of reasonableness. Williams, 313 S.W.3d at 399–04. The defendant must prove, therefore, by a preponderance of the evidence that trial counsel’s representation objectively fell below professional standards. Id. at 400. 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. Id. (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). “Reasonable probability” means a “probability sufficient to undermine confidence in the outcome.” Id. A failure to make a showing under either prong defeats a claim for ineffective assistance. Id.
Any allegation of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness. Id. It is the appellant’s burden to prove ineffective assistance by a preponderance of the evidence and to overcome the strong presumption that his counsel’s conduct falls within the wide range of reasonably professionally assistance or might reasonably be considered sound trial strategy. Id. We will not speculate to find trial counsel ineffective when the record is silent on his counsel’s reasoning or strategy. Id. In rare cases, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. Williams, 313 S.W.3d at 400 (citing Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000)). Such cases are limited to occasions when no reasonable attorney could have made such a decision. Id.
B. Limiting Instruction, Theus Analysis, and Jury Instruction
Appellant first asserts his trial counsel’s assistance was ineffective because counsel failed to (1) request a limiting instruction, (2) request that the trial court conduct a Theus analysis prior to the entry into evidence of his prior convictions, or (3) request a jury instruction on the legality of the initial traffic stop. Regarding his first complaint, appellant asserts that trial counsel’s assistance was ineffective because his counsel should have asked for a limiting instruction when the State cross-examined him about his prior felony and assault convictions. Prior convictions involving a felony or a crime of moral turpitude may be admissible into evidence for the purposes of impeaching a witness if the court determines the probative value of the evidence outweighs its prejudicial effect. See Tex. R. Evid. 609(a); Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). When evidence is admissible for one purpose such as impeachment, but not all purposes, a defendant may request a limiting instruction to restrict evidence to its proper scope. See Tex. R. Evid. 105(a). A trial judge has no obligation to submit a limiting instruction if a defendant fails to request the instruction at the time the evidence is offered. Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (noting failure to request limiting instruction at time evidence is presented renders evidence admissible for all purposes and relieves trial judge of obligation to include instruction).
During appellant’s testimony, appellant’s trial counsel elicited the following testimony on direct:
Q: Now, you’ve been in trouble before, haven’t you?
[Appellant]: Yes, sir.
Q: Have you ever been to the penitentiary?
[Appellant]: Yes, sir.
Q: Once or more than once?
[Appellant]: Twice.
Q: But you understand you’re under oath here today?
[Appellant]: Yes, sir.
Q: And you’re going to tell the truth?
[Appellant]: Yes sir.
Prior to cross-examining appellant, the State approached the bench and notified the court that it wished to impeach appellant’s credibility by asking about four prior felony convictions and his convictions for assaults against women. It argued to the court that appellant opened the door to his past convictions by noting he had “been in trouble before” and by discussing his incarceration. The State asserted that assaults against women constituted a crime of moral turpitude. Appellant’s counsel replied that he was unaware that assaults against women were crimes of moral turpitude but also noted that he agreed the State was entitled to impeach appellant’s credibility. The court allowed the State to question appellant regarding any prior felony convictions, but regarding the assault convictions, limited the State’s questioning to convictions for assaults against women. The State proceeded, and limited its cross-examination to three prior felony convictions for possession of a controlled substance, felony theft, and robbery, and one conviction for an assault against a woman. Appellant’s counsel did not object and did not request a limiting instruction at the time of the questioning or at the time the court presented the jury charge. The record is silent on why appellant’s counsel chose to not request a limiting instruction.
Although appellant filed a motion for new trial, arguing in part that he was entitled to a new trial on the basis of ineffective assistance of trial, appellant did not develop the record regarding this issue, and there is nothing in the trial record to suggest why appellant’s trial counsel chose not to request a limiting instruction. We hold that appellant has not overcome the strong presumption that counsel might have acted pursuant to some strategy regarding his choice not to request a limiting instruction. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (holding that reviewing court may not speculate as to why trial counsel failed to request limiting instruction when record is silent, even if court has difficulty understanding counsel’s actions).
Likewise, we will not speculate as to why trial counsel did not request that the trial court conduct a Theus[2] analysis prior to the entry into evidence of his prior convictions or speculate as to why counsel did not request a jury instruction on the legality of the initial traffic stop. The record in this case is again silent regarding these matters and provides no explanation of the motivation behind counsel’s actions. Additionally, appellant did not elicit evidence or testimony regarding counsel’s strategy at the motion for new trial hearing. Based solely on this silent record, we cannot say that no reasonable trial strategy could justify trial counsel’s conduct. See Martin v. State, 265 S.W.3d 435, 444–45 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that trial counsel did not render ineffective assistance for not filing Theus motion when prior convictions were likely admissible and admission of prior convictions by counsel appeared to be strategic attempt to appear open and honest to jury and to lessen impact of any impeachment on issue);
See also, e.g., Tong v. State, 25 S.W.3d 707, 713–14 (Tex. Crim. App. 2000) (holding that, when record is silent as to counsel’s strategy, counsel’s failure to object to victim impact testimony did not constitute ineffective assistance of counsel); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding that, when record is silent as to counsel’s strategy, counsel’s failure to object to State’s attempts to elicit hearsay testimony did not constitute ineffective assistance of counsel). We hold appellant has, therefore, failed to rebut the Strickland presumption that counsel’s conduct was strategic in not requesting a Theus analysis or jury instruction about the legality of the initial traffic stop. See Thompson, 9 S.W.3d at 815; Martin, 265 S.W.3d at 444–45.
We overrule appellant’s first three issues.
C. Preparation for Trial
In appellant’s fourth issue, appellant directs us to actions by trial counsel that he contends had the effect of rendering counsel’s representation ineffective. He asserts counsel did not adequately prepare him and his case for trial. Appellant further asserts trial counsel failed to meet with him prior to trial, and that because of this, trial counsel failed to discuss the facts of the case with him, conduct an independent investigation of the facts, discuss the law and facts as applied to his case, and did not timely convey the offer from the State. He additionally asserts trial counsel was ineffective because counsel did not come and speak with him about his case while appellant was incarcerated. Finally, he asserts trial counsel’s assistance was ineffective because when he elected to testify, he felt unprepared.
At his motion for new trial hearing, appellant raised similar issues. Trial counsel has a duty to make an independent investigation of the facts of his client’s case and failure to do so may deprive a defendant of the effective assistance of counsel. Miranda, 993 S.W.2d at 327. At the motion for new trial hearing, appellant did not present an affidavit from trial counsel nor did he call trial counsel to testify. See Pena-Mota v. State, 986 S.W.2d 341, 346 (Tex. App.—Waco 1999, no pet.) (noting “[w]ithout testimony by trial counsel,” appellate court cannot “meaningfully address” appellant’s allegations of ineffective assistance). However, appellant testified regarding trial counsel. On direct questioning, appellant testified that trial counsel had spoken with him “zero” times regarding his case. Appellant further testified that he had never met “at all” with counsel, but clarified that he had met with counsel when he was at court. He testified that counsel did not discuss with him the facts of the case; that counsel did not have “Chicago” or another witness, Iesa Ramos, testify; and, that he did not feel adequately prepared when he elected to testify in his defense at trial. Appellant noted that when he elected to testify at trial, he did not realize that his narrative of the facts would be an admission of one of the charges, and that he believed counsel should have explained that fact to him before allowing him to testify. Finally, appellant testified that when he rejected the State’s six-year incarceration plea bargain, his counsel did not adequately warn him that by going to trial he would face 25-years-to-life imprisonment.
On cross-examination, appellant testified that counsel had met with him during pretrial settings and that, during these meetings, counsel discussed with him the plea bargain offer. Additionally, appellant testified that he understood he was not required to testify, and that he decided “on his own” that he would testify. He further noted that he did not know the real first or last name of “Chicago,” and that he did not know where “Chicago” lived nor his phone number. He noted that Ramos’s only contribution as a witness would be to testify regarding the location of “Chicago.”
The trial court could have disregarded appellant’s version of the events as lacking in credibility, especially in light of appellant’s failure to call his attorney as a witness at the motion for new hearing. The record demonstrates that counsel was familiar with the facts of the case, was prepared with defenses, and called a witness to establish an alibi. The record shows that trial counsel was in court with appellant multiple times before appellant was arraigned, including at one status conference, one bond reduction hearing, four disposition settings, and three pretrial conferences. During arraignment, the trial court noted that appellant had met with trial counsel multiple times, and again on the day of arraignment. Furthermore, appellant’s testimony at arraignment, trial, and the motion for new trial hearing, shows that counsel discussed with appellant the State’s plea offer and range of punishment, counsel recommended who should assess punishment, that appellant was aware of that recommendation, that counsel discussed with appellant whether he should testify and gave a recommendation, and that it was appellant’s choice to testify.
In summary, appellant has not overcome the strong presumption that trial counsel’s strategy was reasonable from counsel’s perspective. See Miranda, 993 S.W.2d at 328. The totality of the representation, not isolated acts or omissions, forms the basis from which to review the adequacy of counsel’s assistance. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). While counsel could theoretically have engaged in further trial preparation or could have conducted a higher caliber form of representation, appellant is not entitled to errorless counsel. Miranda, 993 S.W.2d at 328 (citing James v. State, 763 S.W.2d 776, 778 (Tex. Crim. App. 1989)). It is not the duty of this Court to weigh the potential success of the many trial strategies available to trial counsel. Id. (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). Because we find no basis for concluding that counsel did not exercise reasonable professional judgment, appellant has not established the first prong of Strickland required to sustain a claim of ineffectiveness. See Miranda, 993 S.W.2d at 328 (holding that appellant failed to establish first prong of Strickland notwithstanding his complaints of multiple omissions and errors of counsel including failure to conduct a proper investigation of facts in preparation for trial); see also Hill v. State, 303 S.W.3d 863, 879 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding appellant failed to demonstrate first prong of Strickland when record was silent as to why counsel made decisions he made, including choice to not make specific objections to evidence admitted at trial, obtain running objections on specific evidence, file written motion to suppress, and object to comments made by prosecutor during closing arguments).
D. Cumulative Effect
In his fifth issue, appellant contends the cumulative effect of the proceeding four issues resulted in trial counsel rendering ineffective assistance. Our review of appellant’s first four issues reveals no reversible error. Accordingly, these issues, viewed cumulatively or in the aggregate, fail to demonstrate that counsel rendered ineffective assistance. See Williams, 313 S.W.3d at 400; see also Bryant v. State, 282 S.W.3d 156, 176 (Tex. App.—Texarkana 2009, pet. ref’d) (holding that complained of errors, including errors regarding ineffective assistance, did not reveal reversible error when reviewed cumulatively).
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Miranda v. State, 993 S.W.2d 323, 325 (Tex. App.—Austin 1999, no pet.).
[2] In Theus, the Court of Criminal Appeals articulated a non-exclusive list of factors that courts should use to weigh the probative value of a conviction against its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). These factors include (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history, (3) the similarity between the past crime and the charged offense, (4) the importance of the witness’s testimony, and (5) the importance of the witness’s credibility. Id.; Thomas v. State, 312 S.W.3d 732, 739 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d), cert. denied, No. 10-5452, 2010 WL 2888235 (U.S. Oct. 4, 2010)).