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Opinion filed July 31, 2008
In The
Eleventh Court of Appeals
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No. 11-07-00103-CR
__________
JIM ED TALBERT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 12836
M E M O R A N D U M O P I N I O N
Jim Ed Talbert entered an open plea of Aguilty@ to the third degree felony offense of possession of methamphetamine. The trial court convicted him and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten years. The trial court additionally assessed a fine of $2,500. Appellant challenges his punishment in a single issue alleging ineffective assistance of counsel. We affirm.
Background Facts
Appellant=s complaint on appeal focuses on trial counsel=s purported comments to him regarding the admissibility of evidence about an unadjudicated, extraneous offense. After the jury was empaneled, the trial court addressed the admissibility of the extraneous offense in considering appellant=s motion in limine. The extraneous offense arose from appellant=s prior arrest for manufacturing a large amount of a controlled substance. The State advised the trial court that it intended to offer evidence of the extraneous offense during the punishment phase under Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2007). The State further advised the trial court that it had provided notice to appellant=s trial counsel of its intent to offer evidence of the extraneous offense. Appellant sought to exclude this evidence on the grounds of relevancy and unfair prejudice. The trial court denied appellant=s motion in limine by determining that the evidence was admissible during the punishment phase subject to the requirements of Article 37.07.[1]
Appellant=s trial counsel subsequently advised the trial court that appellant wished to enter a guilty plea to the charged offense and have the jury assess his punishment. After the trial court accepted appellant=s plea, appellant=s trial counsel advised the trial court that appellant wanted to address the court. Appellant advised the trial court that he wanted to plead guilty and have the trial court assess his punishment rather than the jury. Appellant additionally stated to the trial court that trial counsel advised him that evidence of the extraneous offense would not be admitted. Appellant=s trial counsel stated that his comments relating to the extraneous offense involved his opinion on whether or not appellant would be indicted for the extraneous offense. Appellant=s trial counsel specifically denied telling appellant that evidence of the extraneous offense would not be admitted at trial.
The trial court ultimately granted appellant=s pro se request for the trial court to assess punishment. The State offered the testimony of two DPS narcotics officers and a DPS chemist. Sergeant Michael Don Stoner offered testimony regarding appellant=s arrest on January 9, 2005, for the charged offense. Sergeant John Waight testified about appellant=s arrest on August 27, 2004, for the extraneous offense. Specifically, Sergeant Waight testified that he and other officers discovered the presence of a clandestine methamphetamine laboratory inside appellant=s residence. Appellant called three witnesses to testify at the punishment hearing, and he also testified on his own behalf. The punishment hearing concluded with the trial court sentencing appellant.
Standard of Review
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. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and an appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@ Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. 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 conduct 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.
Analysis
As noted above, an allegation of ineffective assistance must be firmly founded in the record. Thompson, 9 S.W.3d at 814. The record does not affirmatively demonstrate the alleged ineffectiveness asserted by appellant because trial counsel denied telling him that evidence of the extraneous offense would not be admitted. Therefore, appellant has failed to meet the first prong of the Strickland test because the record does not affirmatively establish that trial counsel=s representation fell below an objective standard of reasonableness.
Additionally, appellant has not met the second prong of the Strickland test because the record does not demonstrate a reasonable probability that the outcome of the proceeding would have been different without trial counsel=s alleged ineffectiveness. The record does not establish that appellant would have received a lesser sentence if the evidence of the extraneous offense had not been admitted. In this regard, the trial court commented on appellant=s status as a former peace officer as a significant basis for the sentence that it imposed. Furthermore, appellant is not seeking to withdraw his plea of guilty based upon trial counsel=s alleged ineffectiveness. Instead, appellant is seeking a new punishment hearing before another judge. Assuming the evidence of the extraneous offense satisfied the requirements of Article 37.07 in a new punishment hearing, the evidence would be admissible irrespective of trial counsel=s purported statements that it would not be admissible. Appellant=s sole issue on appeal is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
July 31, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Article 37.07, section 3(a)(1) provides in relevant part as follows:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, 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.