NO. 07-01-0192-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 17, 2002
______________________________
TRAKEITH DUANE MCINTOSH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 13,605-B; HONORABLE JOHN BOARD, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
In two issues, appellant Trakeith Duane McIntosh challenges his conviction, after
a guilty plea, of burglary of a habitation and the resulting punishment, enhanced because
of two prior felony and nine prior misdemeanor convictions, of 30 years confinement in the
Texas Department of Criminal Justice, Institutional Division.1 In those issues, appellant
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Although the trial court’s judgment recites that the “terms of [the] plea agreement”
were for 30 years confinement, in their appellate briefs, the parties agree that the plea was
“open” and was not made pursuant to an agreement.
asks us to determine if he received the reasonably effective assistance of trial counsel
when counsel failed to 1) seek discovery, 2) object to evidence of a conviction which was
not final, and 3) object to inadmissible evidence. Finding the answers to those issues do
not reveal reversible error, we affirm the judgment of the trial court.
The standard by which we review the effectiveness of trial counsel is that explicated
in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and adopted by our Court of Criminal Appeals in Hernandez v. State, 726
S.W.2d 53, 57 (Tex.Crim.App. 1986). In order to show that trial counsel was ineffective,
a claimant must establish two elements; namely, 1) counsel’s performance was deficient,
and 2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.
The first element is met by showing that trial counsel made errors so significant that
he was not functioning as the counsel guaranteed by the Sixth Amendment to the Federal
Constitution. Id. The second element necessitates a showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Id.
A claimant must show that but for counsel’s errors, the result of the proceeding would have
been different. Id. In conducting its review, an appellate court must bear in mind that there
is a strong presumption that trial counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id. at 690. The
defendant must establish that counsel’s errors, judged by the totality of his representation
and not from isolated instances of error or by only a portion of the trial, were sufficient to
deny him a fair trial. Id. at 695.
2
Each of appellant’s issues arise from the admission into evidence of his prior
conviction for aggravated assault. At the plea hearing, the State introduced several
judgments showing prior convictions of appellant. The State’s first exhibit showed a
conviction for an aggravated assault that occurred in February 1998. Appellant testified
that he did not plead guilty to that offense, but was found guilty by a jury in May 2000, and
was assessed seven years imprisonment. That judgment was received into evidence
without objection and defense counsel did not point out that it was the subject of a pending
appeal.
Appellant now argues that trial counsel was not reasonably effective because he
failed to request “discovery” pursuant to article 37.07 of the Code of Criminal Procedure.
Section 3(a) of that article provides, in relevant part, that the trial court may permit either
party to present evidence of:
any matter the court deems relevant to sentencing, including but not limited
to the prior criminal record of the defendant . . . 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 . . . .
Subsection (g) additionally provides that if requested by the defendant, evidence of crimes
or bad acts which have not resulted in a final conviction may not be presented by the State
unless it has given notice of intent to present such evidence.
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The gist of appellant’s challenge here is that the failure of trial counsel to require the
State to give notice of its intent to introduce the evidence of extraneous bad acts
prejudiced appellant’s defense. In particular, appellant’s argument is directed at the
admission of his previous conviction for aggravated assault. However, there is nothing in
the record that shows that trial counsel was unaware of this conviction. Moreover, the
notice provisions of section 3(g) would simply add a procedural predicate to the admission
of that conviction. For us to find that the failure to require that procedural predicate
prejudiced appellant’s defense would require us to speculate that the State would not, or
could not, satisfy that procedural requirement. This we cannot do. Appellant’s first issue
is overruled.
In his second and third issues, appellant argues a conviction that is not final
because it is on appeal is not an admissible extraneous “crime or bad act” within the
purview of section 3(a) of article 37.07. Because the aggravated assault conviction was
on appeal at the time of the instant trial, appellant posits that trial counsel was ineffective
because he failed to object to the admission of that evidence. As authority for that
proposition, he cites Taylor v. State, 911 S.W.2d 906 (Tex.App.--Fort Worth 1995, pet
ref’d). However, examination of that opinion reveals that it was concerned with an earlier
version of article 37.07, which limited evidence at the punishment hearing to a defendant’s
“prior criminal record” and general reputation. Id. at 908-09. The statute went on to define
“prior criminal record” as limited to final convictions. Id. at 908. However, the current
version of section 3(g) specifically allows the introduction of an “extraneous crime . . . that
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has not resulted in a final conviction . . . .” Appellant’s aggravated assault conviction
clearly falls within that permissive area. Appellant’s second and third issues are overruled.
In sum, all appellant’s issues are overruled and the judgment of the trial court is
affirmed.
John T. Boyd
Chief Justice
Do not publish.
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Trakeith Duane McIntosh v. State of Texas
Combined Opinion