TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 46,422, HONORABLE RICK MORRIS, JUDGE PRESIDING
In two points of error, appellant contends he did not receive effective assistance of counsel at trial. Finding this contention unsupported by the record, we will affirm the district court's judgment.
The complaining witness was Brandy Kent Collins, appellant's estranged wife. (1) The couple married in North Carolina in July 1995, when she was sixteen and he was nineteen. They moved to Killeen when appellant joined the Army and was assigned to Fort Hood. In December 1995, after appellant was discharged from the Army for misconduct, the marriage began to deteriorate. According to Kent, appellant became abusive. She left appellant in February 1996 and moved into a friend's apartment.
After the separation, appellant called or visited Kent almost daily at the high school where she was a student and part-time employee. On March 5, 1996, appellant came to the school, ostensibly to return clothing belonging to Kent. When she went outside to appellant's car, he pointed a pistol at her and demanded that she get in the vehicle. Appellant then drove to a motel in Waco where he had previously rented a room. Inside the room, appellant begged Kent to return to him and threatened to kill himself. He then taped her wrists together, covered her mouth with tape, and began to remove her clothing. When she resisted, he threatened to cut her with a razor blade. Fearing that appellant would shoot or cut her, Kent submitted to his sexual assault. Later, appellant began to cry and again threatened to kill himself. Kent calmed appellant and convinced him to return her to Killeen.
Appellant asserts that counsel was ineffective at both the guilt and punishment stages of the trial. To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). The test for effectiveness of counsel at the punishment stage of a noncapital trial is whether counsel was reasonably likely to render and rendered effective assistance. Ex parte Craig, 825 S.W.2d 128, 130 (Tex. Crim. App. 1987); Ex parte Cruz, 739 S.W.2d 53, 57-58 (Tex. Crim. App. 1987).
Counsel's performance must be judged in its totality, rather than by isolating individual errors or omissions. Oestrick v. State, 939 S.W.2d 232, 237 (Tex. App.--Austin 1997, pet. ref'd). We also must avoid the distortions of hindsight, and evaluate counsel's conduct from his perspective at the time of trial. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
With respect to the guilt stage, appellant complains that his attorney did not object to testimony that he was discharged from the Army for misconduct and that he was physically abusive to Kent. Appellant contends this testimony was objectionable as evidence of irrelevant extraneous misconduct. See Tex. R. Evid. 404(b). Appellant also urges that counsel should have objected to the "bolstering" of Kent by a school counselor, who testified that Kent was level-headed, dependable, and truthful. And appellant contends counsel should have objected when the prosecutor, during jury argument, told the jury that appellant violated the conditions of his bail bond. Appellant did not file a motion for new trial and the record is silent concerning trial counsel's failure to voice the objections appellant claims should have been made. Absent evidence to the contrary, we must presume that counsel was in the best position to judge the efficacy of the case and that his failure to object was an exercise of reasonable professional judgment. Jackson, 877 S.W.2d at 771.
Appellant contends that counsel's most serious error at the guilt stage was his failure to object when the prosecutor referred to his failure to testify during jury argument. The prosecutor said, "And if you look at the law and you look at the evidence, the inescapable conclusion is that this Defendant is guilty of both Counts of this indictment, because the only evidence you heard from that witness stand proves his guilt to both Counts beyond a reasonable doubt." Alleged comments on a defendant's failure to testify must be viewed from the jury's perspective. Error is presented only if the comment necessarily referenced the defendant's failure to testify. See Cooper v. State, 959 S.W.2d 682, 686 (Tex. App.--Austin 1997, pet. filed). Contrary to appellant's contention, the argument in question does not refer to appellant's failure to testify either directly or by necessary implication.
Appellant has not satisfied his burden of proving either that counsel was not functioning effectively at the guilt stage or that counsel's errors prejudiced his defense to such a degree that appellant was deprived of a fair trial. Point of error one is overruled.
Regarding the punishment phase of trial, appellant contends his attorney should have objected when the prosecutor impeached him with his post-arrest silence. Appellant testified at the punishment stage and admitted taking Kent to the Waco motel where they had sexual intercourse. He said, however, that he was not armed with a pistol and that Kent went with him willingly. He denied threatening or using force against her. During cross-examination, the prosecutor asked appellant, "Well, you were given the opportunity to tell that story to Investigator Hebert when you were picked up, but you didn't bother to tell him that, did you? You said you didn't want to talk to the police." Appellant denied ever speaking to Hebert, and said he was never given the opportunity to make a statement.
In Texas, it is improper to impeach a defendant's testimony with proof of his post-arrest silence. See Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986). Assuming that the prosecutor's cross-examination was objectionable on this ground, counsel's failure to object does not alone compel a finding of ineffectiveness. Having chosen to have appellant testify, counsel may have believed that an objection would have given the jury the impression that appellant had something to hide. In any event, counsel's performance must be gauged by the totality of his representation of appellant. Cruz, 739 S.W.2d at 58. The right to effective counsel does not mean errorless counsel or counsel whose competence is judged by hindsight. Id. The record does not support the conclusion that trial counsel rendered ineffective assistance at the punishment stage of appellant's trial. Point of error two is overruled.
The judgment of conviction is affirmed.
John Powers, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: May 14, 1998
Do Not Publish
1. The complainant was named in the indictment as Brandy Collins, but used her maiden name, Brandy
Kent, at trial. We will refer to her as Kent.
hool counselor, who testified that Kent was level-headed, dependable, and truthful. And appellant contends counsel should have objected when the prosecutor, during jury argument, told the jury that appellant violated the conditions of his bail bond. Appellant did not file a motion for new trial and the record is silent concerning trial counsel's failure to voice the objections appellant claims should have been made. Absent evidence to the contrary, we must presume that counsel was in the best position to judge the efficacy of the case and that his failure to object was an exercise of reasonable professional judgment. Jackson, 877 S.W.2d at 771.
Appellant contends that counsel's most serious error at the guilt stage was his failure to object when the prosecutor referred to his failure to testify during jury argument. The prosecutor said, "And if you look at the law and you look at the evidence, the inescapable conclusion is that this Defendant is guilty of both Counts of this indictment, because the only evidence you heard from that witness stand proves his guilt to both Counts beyond a reasonable doubt." Alleged comments on a defendant's failure to testify must be viewed from the jury's perspective. Error is presented only if the comment necessarily referenced the defendant's failure to testify. See Cooper v. State, 959 S.W.2d 682, 686 (Tex. App.--Austin 1997, pet. filed). Contrary to appellant's contention, the argument in question does not refer to appellant's failure to testify either directly or by necessary implication.
Appellant has not satisfied his burden of proving either that counsel was not functioning effectively at the guilt stage or that counsel's errors prejudiced his defense to such a degree that appellant was deprived of a fair trial. Point of error one is overruled.
Regarding the punishment phase of trial, appellant contends his attorney should have objected when the prosecutor impeached him with his post-arrest silence. Appellant testified at the punishment stage and admitted taking Kent to the Waco motel where they had sexual intercourse. He said, however, that he was not armed with a pistol and that Kent went with him willingly. He denied threatening or using force against her. During cross-examination, the prosecutor asked appellant, "Well, you were given the opportunity to tell that story to Investigator Hebert when you were picked up, but you didn't bother to tell him that, did you? You said you didn't want to talk to the police." Appellant denied ever speaking to Hebert, and said he was never given the opportunity to make a statement.
In Texas, it is improper to impeach a defendant's testimony with proof of his post-arrest silence. See Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986). Assuming that the prosecutor's cross-examination was objectionable on this ground, counsel's failure to object does not alone compel a finding of ineffectiveness. Having chosen to have appellant testify, counsel may have believed that an objection would have given the jury the impression that appellant had something to hide. In any event, counsel's performance must be gauged by the totality of his representation of appellant. Cruz, 739 S.W.2d at 58. The right to effective counsel does not mean errorless counsel or counsel whose competence is judged by hindsight. Id. The record does not support the conclusion that trial counsel rendered ineffective assistance at the punishment stage of appellant's trial. Point of error two is overruled.
The judgment of conviction is affirmed.