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Opinion filed March 6, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00121-CR
________
DONALD SAMUEL CAMPBELL, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 118th District Court
Martin County, Texas
Trial Court Cause No. 1382
C O N C U R R I N G M E M O R A N D U M O P I N I O N
I concur with the court=s opinion and judgment but write separately because this case exemplifies the difficulty appellate courts have when faced with ineffective-assistance-of-counsel issues on direct appeal. The trial court=s statement prior to jury argument on punishment that Donald Samuel Campbell=s conviction for burglary may not comply with the law regarding enhancements, and the prosecution=s decision to waive a charge on that conviction, suggests that it was not a final conviction and should not have been admitted. It is difficult to imagine any scenario where sound trial strategy would be served by eliciting testimony from the defendant regarding an inadmissible conviction and, as the court notes, counsel has been found constitutionally ineffective for doing precisely this. See Robertson v. State, 187 S.W.3d 475, 486 (Tex. Crim. App. 2006).
A comparison of Robertson with this case, however, not only reinforces the court=s decision, but illustrates the practical difficulties ineffective assistance arguments raise. In Robertson, the extraneous convictions were clearly inadmissible because they were still pending on appeal. Id. at 481. Our record is not so clear. In part, this is because key discussions concerning the burglary conviction occurred before or after regular court proceedings and, thus, were off of the record. No criticism of counsel or the trial court is intended because such conversations are necessary and proper. However, when significant matters are not made part of our record, any subsequent review is hampered.
A second key distinction is the presence or absence of an evidentiary posttrial hearing. In Robertson, trial counsel testified and said that he decided to elicit testimony from appellant that appellant was currently incarcerated on two other convictions to bolster his client=s credibility. Id. at 480-81. He did this, knowing that the convictions were pending on appeal B because he did not realize that they were inadmissible. Id. at 481. In this case, there was no posttrial evidentiary hearing. Consequently, we do not know counsel=s trial strategy, but more importantly we do not know the full extent of counsel=s knowledge or his efforts to investigate this matter.
Even if we assumed the burglary conviction was inadmissible, the deferential review we must employ requires that we afford counsel the benefit of the doubt and assume that his investigation was reasonable and that he did not know that the conviction was inadmissible. Given the stigma associated with being determined constitutionally ineffective, the unclear state of the record, and Campbell=s opportunity to seek postconviction relief, such presumption is clearly appropriate in this
case.
RICK STRANGE
JUSTICE
March 6, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.