Affirmed and Memorandum Opinion filed January 6, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00192-CR
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HENRY ALFRED THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 919,827
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M E M O R A N D U M O P I N I O N
Henry Alfred Thomas appeals a conviction for aggravated robbery[1] on the grounds that he was denied: (1) the right to confront a key State witness regarding her possible bias; and (2) effective assistance of counsel. We affirm.
Limited Cross Examination
Appellant’s first point of error contends that the trial court violated his right to confrontation and Texas Rule of Evidence 613(b)[2] by refusing to allow him to question Kathy Martinez, an identification witness, about her incarceration to show bias, motive, or pressure that affected her testimony. Although Martinez’s incarceration was not related to a prosecution against her, but solely pursuant to a material witness bond to assure her appearance at appellant’s trial, appellant asserts that Martinez could have nevertheless been biased in believing that how she testified could affect her incarceration.
A primary interest secured under the Confrontation Clause[3] is a criminal defendant’s right of cross-examination over all matters reasonably calculated to expose the jury to facts from which they can draw inferences regarding the accuracy and truthfulness of a witness’s testimony, including his motivation for testifying and other potential biases.[4]
In this case, there is no evidence that Martinez had any matters pending with the State that could have provided a motive for her to testify in its favor. In addition, outside the presence of the jury, she testified that: (1) she was not influenced to testify in a certain way because she had been in jail; (2) she understood she would be released after trial no matter how she testified; and (3) the prosecutor had never threatened her or made any deal or promises to her conditioned on her testimony. The prosecutor similarly stated that a material witness bond had been placed on Martinez because she could not be located previously, and that there was no deal with her. Under these circumstances, we have no basis to conclude that evidence of Martinez’s incarceration could have reflected adversely on her credibility. Accordingly, appellant’s first issue is overruled.
Ineffective Assistance of Counsel
Appellant’s second issue contends that he was denied effective assistance of counsel by his trial counsel’s failure, during the punishment phase of trial, to object to inadmissible hearsay testimony regarding another similar robbery that linked him to the charged offense.
The Sixth Amendment guarantee of effective assistance of counsel to criminal defendants is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense. Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003); Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003). However, ineffective assistance claims must be affirmatively demonstrated in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). To overcome the presumption that a challenged action or omission might be considered sound trial strategy, the record must ordinarily reflect the reasons why counsel took, or failed to take, the action. See Rylander, 101 S.W.3d at 110-11. To establish ineffective assistance for failing to object to evidence, an appellant must establish that the evidence was inadmissible. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, 123 S. Ct. 1901 (2003).
In this case, appellant did not file a motion for new trial or otherwise develop a record reflecting his counsel’s reason(s) for not objecting to the evidence, so as to rebut the presumption of sound trial strategy and establish deficient performance by his counsel. In addition, appellant has failed to demonstrate a probability that, but for counsel’s alleged error, the result of the proceeding would have been different. The evidence did not affect appellant’s conviction, as the jury had already found him guilty of aggravated robbery with a firearm. Moreover, the jury’s sentence of only 20 years without a fine was at the low end of the possible range of punishment, as enhanced by his prior conviction (15 to 99 years or life imprisonment and a fine up to $10,000). There is thus no indication that any failure to object to the extraneous offense evidence (if even inadmissible) caused appellant harm. Because appellant’s second issue fails to establish ineffective assistance of counsel, it is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed January 6, 2004.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] A jury convicted appellant of aggravated robbery and sentenced him to twenty years confinement.
[2] See Tex. R. Evid. 613 (describing the procedure for impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness).
[3] See U.S. Const. amend. VI; Tex. Const. art. I, § 10.
[4] Davis v. Alaska, 415 U.S. 308, 315-18 (1974); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); Hoyos v. State, 982 S.W.2d 419, 420-421 (Tex. Crim. App. 1998).