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Opinion filed August 7, 2008
In The
Eleventh Court of Appeals
____________
No. 11-07-00053-CR
__________
JONATHAN WELDON WOMACK, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR18585
M E M O R A N D U M O P I N I O N
Jonathan Weldon Womack was indicted for sexual assault. Womack entered an open plea. The trial court convicted appellant and assessed his punishment at confinement for fifteen years. He challenges this sentence with a single issue, contending that his trial counsel was constitutionally ineffective for not objecting to evidence offered in the punishment hearing that he was in arrears on child support. We affirm.
At the beginning of the punishment hearing, trial counsel advised the court that he was asking the court to order Aa form of probation.@ The trial court then heard evidence. That evidence established that Womack moved in with the minor victim and her mother when the victim was fifteen years old and he was thirty-nine. Soon after this, Womack began having unprotected sex with the victim twice a week for several months until he was arrested. The victim became pregnant and had given birth by the time of the sentencing hearing. She could not say positively that Womack was the father because she had also been sexually assaulted by her mother=s boyfriend. The victim testified that she needed help taking care of the child and that Womack planned to help her. Womack had three other children who were eighteen, fourteen, and eleven years old. The victim conceded that Womack=s relationship with these children was not very good.
Detective Lana Guthrie was the investigating officer. She testified that, based upon her interviews and Womack=s letters to the victim from jail, there was no doubt in her mind that Womack=s relationship with the victim would continue if he was released. She also testified that the victim believed Womack would help take care of the child but that in her opinion this was unlikely because he was not providing support for his other children. According to Detective Guthrie, Womack owed approximately $23,000 in past-due child support.
Womack testified and disputed Detective Guthrie=s characterization of his relationship with his children. He acknowledged being behind on his child support payments but testified that he had paid support in the past and attributed part of his arrearage to being unable to make support payments when he was in prison for two years on a prior conviction. He also testified that he had a typical father/daughter relationship with his youngest child and that he talked to his two sons. Womack told the trial court that if placed on probation he would take responsibility for the victim=s child and that his job as a roofer would allow him to do so. He also told the court that he could be believed because he was forty years old and had finally reached a breaking point. During closing, trial counsel asked the court to give Womack a probated sentence to provide him with an opportunity to prove that he could do something right.
To determine if trial counsel rendered ineffective assistance, we must first determine whether Womack 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). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and Womack 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). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking as to overcome the presumption that counsel=s representation was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. Womack criticizes his counsel=s failure to object to Detective Guthrie=s past-due child support testimony, but any objection would have been pointless because the door had been previously opened with the victim=s testimony that Womack intended to help take care of the child.[1] Counsel cannot be found ineffective for failing to make an objection unless the record establishes that an objection would have been successful. See Cedillos v. State, 250 S.W.3d 145, 154 (Tex. App.CEastland 2008, no pet.) (Because the record did not show why the defendant was shackled, the court could not conclude that counsel was ineffective for failing to object to the use of restraints.). Accordingly, the issue is perhaps better phrased by asking if counsel was ineffective for utilizing a strategy that made his child support arrearage relevant.
Counsel=s intention was to avoid imprisonment. This is a reasonable goal but, under the facts of this case, was a difficult task to achieve. Counsel knew that Womack had a prior felony conviction for theft, that he received a probated sentence, and that his community supervision was revoked for driving while intoxicated and for violating a number of conditions of community supervision. Womack confessed to having an extended sexual relationship with a minor less than half his age, and both he and the minor fully intended to continue that relationship if he was released from jail. Counsel could reasonably infer that the trial court would be concerned about this and, therefore, that he needed to show the court that the benefits of community supervision would outweigh its possible costs.
Counsel could reasonably conclude that Womack=s ability and willingness to support the child financially would address the court=s concerns because the child needed the support and because it also demonstrated Womack=s acceptance of responsibility. The victim was sixteen years old at the time of the hearing and was in high school. Her child was two months old, and she was living with her mother and a brother and a sister. Her plan for taking care of the child was to do the best she could. There is no reason to doubt the victim=s sincerity, but the best a high school student living at home with a single mother and two other siblings can do to provide for the care of a newborn is limited. Womack=s salary would have certainly improved the child=s financial resources, but his intention to provide financial support necessarily opened the door to testimony about his past child support experience. However, we cannot say that this evidence was any more prejudicial than the testimony that counsel knew would come in, and, without it, there is little in the record to support a request for probation.
Because counsel could reasonably conclude that evidence of Womack=s ability and willingness to provide financial support would promote his request for community supervision, he was not constitutionally ineffective for following a strategy that made Womack=s prior child support payment history admissible. Womack=s issue is overruled.
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
August 7, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]We need not decide if the arrearage testimony was otherwise admissible under Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2007) and express no opinion on this issue.