COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-104-CR
2-08-105-CR
2-08-106-CR
2-08-107-CR
2-08-108-CR
RADFORD ROY PANNELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Radford Roy Pannell appeals his five fifteen-year sentences for
theft under $1,500 and evading arrest or detention using a vehicle, alleging in
one point that he received ineffective assistance of counsel at punishment. We
affirm.
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… See Tex. R. App. P. 47.4.
Background Facts
Appellant entered an open plea of guilty to four counts of theft against
four separate people; each count was enhanced with two prior theft
convictions, a prior conviction for robbery causing bodily injury, and a prior
conviction for forgery. Appellant also entered an open plea of guilty to evading
arrest, enhanced by a prior conviction for robbery causing bodily injury and a
prior conviction for forgery. The trial court ordered a presentence investigation
report (PSI) and set a hearing on punishment.
At punishment, the State offered evidence that while appellant was on
bond for the offenses to which he pled guilty, appellant wrote fifteen checks
to a store owner in the amount of around $6,000 for cigarettes. The owner
contacted appellant’s bank and discovered that appellant did not have sufficient
funds to cover the checks. When appellant later returned to the same store,
the owner locked the door and told him she knew he did not have the money
to cover the checks. He asked her what she wanted, and then he pushed her
so hard she fell to the ground. After she fell, he took her keys. As appellant
was going out the door, the owner activated an alarm to call the police,
grabbed a can of mace, and tried to spray appellant with it. He nevertheless
was able to flee outside. The owner tried to follow appellant, but he pulled her
hand, making her fall down a second time, and drove off. The owner testified
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that she was afraid she would lose her store because she could not repay loans
she had to take out to cover her losses from appellant’s bad checks.
When appellant committed this extraneous conduct, he was out on bond
for the offenses to which he had pled guilty and was awaiting the preparation
of a PSI and the assessment of punishment. Appellant was in jail when the
detective investigating the extraneous offenses interviewed him; appellant
admitted to the detective that he knew the checks were bad when he wrote
them.
Appellant testified, acknowledging that he committed the offenses of
theft by check, but he contended that he wanted to make restitution to the
store owner and all the other victims. According to appellant, he had a drug
problem that caused him to commit all of these crimes. Appellant testified that
he was finally tired of hurting people and that he wished to make amends; as
a result, he offered to submit to drug treatment and make restitution.
The defense also called two of appellant’s friends and his wife. They all
testified that appellant was a drug addict but that he was a good candidate for
community supervision and would be able to make restitution to his victims.
Defense counsel stressed appellant’s drug problems and willingness to make
restitution and urged the trial court to grant appellant community supervision;
however, the State stressed appellant’s repeated criminal convictions spanning
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at least twenty-five years and recommended the maximum sentence, twenty
years.
The trial court sentenced appellant to fifteen years in each case. On the
record, the court listed appellant’s past criminal convictions in Tarrant County
and noted that he had been in drug treatment twice before, that in one year he
had incurred restitution costs of $60,000, and that he had committed theft by
check while on bond for the same type of crime. Before sentencing appellant,
the judge specifically stated,
And it’s just difficult for me to understand, sir, why is this
happening to someone with your education, with your ability, with
your degree of articulateness, with the people that you have in the
courtroom who are supporting you and will support you. And I just
cannot give you a chance based on your criminal history and based
on what you’ve been willing to do even when I’ve had you out on
my bond. I just can’t take a chance on you, sir, and I won’t.
In a single point, appellant contends that his attorney was ineffective by
failing to discover, investigate, and prepare a defense regarding the thefts by
check that he committed while out on bond. He bases this allegation on
counsel’s objections at the beginning of punishment to the State’s witnesses
to the cigarette thefts by check, to which counsel stated that he had not
received notice of the unfiled case and objected to the relevance of it to “the
cases he’s pled guilty to.” Counsel repeatedly objected to the extraneous
offenses’ relevance, later stating specifically that “[i]t’s a case that I’m not
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familiar with, hasn’t been filed, and I would – certainly wouldn’t be representing
him on this case. I haven’t been appointed on it or anything.” According to
appellant, “there is a reasonable probability that the trial court would have at
least backed off to some degree” on the fifteen year sentences “had counsel
made an effort to discover, investigate, and prepare to defend against the
extraneous offense presented at punishment.”
Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
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at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with
a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other
words, appellant must show there is a reasonable probability that, but for
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counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding in
which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.
Analysis
Here, there is no motion for new trial record showing the extent of
counsel’s knowledge or lack thereof regarding the theft by check extraneous
offenses. However, counsel’s initial objection seems to indicate that he was
made aware of the extraneous conduct evidence the morning before the
hearing:
Your Honor, I object to these witnesses being called. As we
discussed, it’s apparent in the case that we did not receive any
notice about it until today’s hearing, and I note this is a case that
has not been filed - - there was no formal notice, I should say. The
prosecution did discuss it, but there’s been no case filed on these
charges, so, therefore, I would object to the relevance to this case.
The State responded,
And, Your Honor, for the record, the State brought it up with
defense counsel previous to Mr. Hernandez, as soon as the State
received notice that these cases had - - were being developed by
the police, and that was previous attorney, Jerry Wood,[2 ] and as
2
… Wood’s motion to withdraw, dated about a month before sentencing,
notes that appellant had “since been charged with a new offense.”
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soon as we had a copy of the offense report ready, and it’s case
number 080019825, that was provided. It is on ECFS, and it is
part of the State’s open file.
Appellant’s counsel then stated, “I was provided the checks this morning and
was not aware that these had been put on ECFS, Your Honor.”
Regardless, counsel was able to elicit on cross-examination of the
investigating officer for the theft by check offenses that appellant had offered
to provide restitution, that he gave the officer the name of someone who would
contact the officer regarding restitution, that appellant was “forthcoming with
information and . . . appeared to want to be very helpful” with the case, that
appellant was calm and did not make excuses for his actions, and that appellant
was atypical for someone with his criminal history because “[m]ost people with
the type criminal history that he has that [the officer] ha[s] dealt with . . .
usually make up excuses for what they’ve done and are not very forthcoming
with information.” He also elicited testimony from the officer that drug addicts
can reform and become contributing members of society.
On cross-examination of the victim of the extraneous theft by check
offenses, counsel elicited testimony that although she was scared of appellant,
he never hit her. Also, he elicited testimony that she would rather be paid back
through having the court order restitution, which she understood would be
impossible if appellant were sent to prison. Thus, counsel was able to elicit
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testimony favorable to his defensive theories—that appellant deserved a second
chance due to his drug addiction and willingness to make restitution—from both
of the theft by check witnesses.
In judging the defense’s investigation, as in applying Strickland generally,
hindsight is discounted by pegging adequacy to “counsel’s perspective at the
time” investigative decisions are made. Rompilla v. Beard, 545 U.S. 374, 381,
125 S. Ct. 2456, 2462 (2005); Aldrich v. State, No. 02-05-00303-CR, 2008
WL 5057647, at *16 (Tex. App.—Fort Worth Nov. 26, 2008, no pet. h.) (en
banc). Strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable, and strategic choices
made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation. Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066; Aldrich,
2008 WL 5057647, at *16; Hale v. State, 140 S.W.3d 381, 393 (Tex.
App.—Fort Worth 2004, pet. ref’d). In other words, counsel has a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. Strickland, 466 U.S. at 690–91, 104 S.
Ct. at 2066; Aldrich, 2008 WL 5057647, at *16.
Here, counsel was appointed a month before the hearing at which the trial
court assessed appellant’s punishment. He did not request a continuance upon
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learning of the extraneous offense evidence. But he did object to the admission
of the evidence and was able to elicit testimony favorable to his defensive
theories in the case from the witnesses. Further, there is no evidence as to the
reasonableness of counsel’s decision to investigate to the extent he did, or did
not. Thus, based on this undeveloped record, we cannot say that counsel was
deficient with regard to investigating the extraneous theft by check conduct.
See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Salinas v.
State, 274 S.W.3d 256, 261–62 (Tex. App.—Houston [14th Dist.] 2008, pet.
filed); Rodriguez v. State, 103 S.W.3d 460, 461–62 (Tex. App.—San Antonio
2002, pet. ref’d), cert. denied, 541 U.S. 1044 (2004).
Moreover, even assuming that counsel’s performance fell below an
objective standard of reasonableness, appellant has not shown that but for
counsel’s errors, there is a reasonable probability that the result of the trial
would have been different. Appellant’s counsel was able to elicit testimony
favorable to his defensive theories, and appellant has not alleged anything that
counsel could have done differently or what additional investigation would have
uncovered that would have changed the trial court’s assessment of punishment.
See Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005) (“To establish that an
attorney was ineffective for failure to investigate, a petitioner must allege with
specificity what the investigation would have revealed and how it would have
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changed the outcome of the trial.”); Ex parte Nailor, 105 S.W.3d 272, 279
(Tex. App.—Houston [14th Dist.] 2003), aff’d, 149 S.W.3d 125 (Tex. Crim.
App. 2004); Haight v. State, Nos. 02-05-00163–65-CR, 2007 WL 176487, at
*4 (Tex. App.—Fort Worth Jan. 25, 2007, pet. ref’d) (mem. op., not
designated for publication). The trial court specifically stated on the record that
its decision was based on appellant’s past history, not just his engaging in the
theft by check offenses while out on bond. Based on appellant’s admitted drug
addiction and over twenty-year history of committing robbery and theft, the trial
court could have concluded that his offer to make restitution was too little, too
late. Based on this record, we cannot conclude that appellant has shown that
the outcome of his trial would have been different but for his counsel’s
performance.
We overrule appellant’s sole point and affirm the trial court’s judgments.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 23, 2009
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