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Opinion filed August 14, 2008
In The
Eleventh Court of Appeals
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No. 11-07-00094-CR
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VICTOR ANTHONY PADILLA, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 13188
M E M O R A N D U M O P I N I O N
The jury convicted Victor Anthony Padilla of the offense of possession of a controlled substance, to wit: more than four grams but less than two hundred grams of methadone. Appellant pleaded true to the enhancement allegations, and the jury assessed punishment at confinement for twenty-five years. We affirm.
Issues
Appellant presents three issues for appellate review. In the first issue, he asserts that he received ineffective assistance of counsel at trial. In the second issue, appellant complains that he was questioned without having received his Miranda[1] warnings. Appellant asserts in his final issue that a passenger is entitled to the same constitutional safeguards enjoyed by the driver.
Background
Appellant was an unauthorized passenger in an eighteen-wheeler that was stopped for speeding. The driver consented to a search of the truck. Appellant volunteered to the officer performing the search that he had methadone in a white cooler in the truck. The officer then located the white cooler, which did contain a bottle of methadone. Appellant stated that the methadone was his and that he had obtained it from his aunt. Appellant testified at trial and admitted possessing the methadone.
Assistance of Counsel at Trial
In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In order to assess counsel=s performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel=s perspective at the time. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508‑09 (Tex. Crim. App. 1991). We note that a defendant is not entitled to perfect or error‑free counsel. Isolated instances of errors of omission or commission do not render counsel=s performance ineffective; ineffective assistance of counsel cannot be established by isolating one portion of trial counsel=s performance for examination. McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992).
The record shows that trial counsel filed a variety of pretrial motions; conducted voir dire of the venire panel; made an opening statement; cross-examined the State=s witness; called two defense witnesses; and made a successful closing argument at the punishment phase of trial, stressing that appellant had a drug addiction but was not a violent person and requesting the minimum punishment of twenty-five years.
Appellant argues that trial counsel performed deficiently by allowing appellant to plead true to the enhancement allegations, by failing to object to appellant being cross-examined regarding his prior convictions, by failing to object to the enhancement proof, by failing to object based upon Miranda, and by failing to obtain a copy of appellant=s prescription for methadone.
In addressing these particular arguments, we first point out that the record does not show that appellant had a prescription for the methadone but, rather, indicates that he had no such prescription. Next we point out that the remoteness of the two prior convictions B twenty years and fifteen years prior to this trial B does not make them ineligible for purposes of enhancement pursuant to Tex. Penal Code Ann. ' 12.42(d) (Vernon Supp. 2007). The prior convictions from California were also documented by trial exhibits that included authenticated copies of the abstracts of the judgments from the California Department of Corrections and Rehabilitation. As for the Miranda issue, the officer testified that appellant volunteered some of the information prior to being placed under arrest and volunteered some of the information after being placed under arrest. The Court in Miranda specifically stated that its holding did not apply to volunteered statements. 384 U.S. at 478. The remaining statement made by appellant to the officer does appear to be the result of custodial interrogation; the officer testified that, after placing appellant under arrest, he asked appellant if he had a prescription for the methadone and that appellant said he did not. The record does not show whether the officer had given appellant the Miranda warnings prior to asking the question about a prescription. Thus, we cannot determine that trial counsel was ineffective for failing to object on that basis. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007) (record on direct appeal usually inadequate to show ineffectiveness).
Finally, we express our concern not only with trial counsel=s failure to object when the State impeached appellant during cross-examination with his prior remote convictions but also with trial counsel=s initial introduction of the remote convictions during the direct examination of appellant=s sister and then again during the direct examination of appellant at the guilt/innocence phase of trial. See Tex. R. Evid. 609(b); Robertson v. State, 187 S.W.3d 475, 482-86 (Tex. Crim. App. 2006) (counsel=s performance deficient for eliciting testimony from the defendant during the guilt phase of trial regarding convictions that were pending appeal and were, thus, inadmissible under Tex. R. Evid. 609(e)). However, appellant has not shown that there is a reasonable probability that the result would have been different but for counsel=s introduction of these prior burglary convictions. Appellant had no defense to the commission of the offense in this case; he admitted to the officer and again at trial that he possessed the methadone. Therefore, we cannot say that, but for the admission of the remote convictions, the result of the guilt/innocence proceedings would probably have been different. We also note that appellant received the minimum punishment allowable under Section 12.42(d). Appellant=s first issue is overruled.
Remaining Issues
We hold that appellant failed to preserve error with respect to the second and third issues because he made no objection at trial based upon the failure of the officer to give the Miranda warnings or upon the violation of his constitutional rights. Tex. R. App. P. 33.1. Moreover, the record does not show that the officer failed to give the Miranda warnings prior to questioning appellant or that appellant was denied the same constitutional safeguards as enjoyed by a driver. Appellant=s second and third issues are overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
August 14, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.