Affirmed and Memorandum Opinion filed July 3, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00314-CR
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JOHNNY FRANCIS SCANTLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 41,312
M E M O R A N D U M O P I N I O N
Appellant, Johnny Francis Scantlin, was charged by indictment with the felony offense of assault, family violence. Tex. Penal Code Ann. ' 22.01 (Vernon Supp. 2006). In five issues, he contends (1) the trial court erred in admitting evidence of extraneous offenses, and (2) he received ineffective assistance of counsel. We affirm.
On December 6, 2004, appellant assaulted his wife. Appellant was indicted for the offense of assault, family violence, and the indictment further alleged that, in three instances, appellant had previously been convicted of an assault involving a family member, and he had been convicted of retaliation. Appellant was convicted and the jury sentenced him to fifteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice.
I. Admission of Prior Bad Acts
In his first issue, appellant contends the trial court improperly admitted evidence of prior bad acts because the probative value of those acts was substantially outweighed by the danger of unfair prejudice. Specifically, appellant complains of the complainant=s testimony on redirect examination where she was permitted to testify that she was familiar with appellant=s criminal history, she was aware he had a prior history for assaulting women, and she knew at the time he assaulted her he was on parole for another offense. The complainant further testified that appellant had previously assaulted her. The trial court permitted such testimony after appellant attempted to show on cross-examination that the complainant knew appellant was on parole and she was not really afraid of appellant.
Appellant, during his opening statement and his cross-examination of the complainant, raised the issue of whether the complainant was afraid of appellant at the time of the assault. During his opening statement, appellant=s counsel stated, ANever has he been arrested for assaulting her, never has he been accused of assaulting her.@ Appellant=s counsel further stated, AShe was still upset at him, knowing full well that he had prior convictions, and if she called the law, it was going to be assumed that probably he was going to be arrested.@ On cross-examination of the complainant, appellant=s counsel attempted to elicit testimony that she was not really afraid of appellant since she repeatedly engaged appellant during the assault that resulted in the instant offense.
Following appellant=s cross-examination, the prosecutor asked for a bench conference and requested permission from the trial court to question the complainant on appellant=s prior offenses. The prosecutor stated that because appellant was attempting to show the complainant lied about being afraid of him, the State was entitled to ask the complainant whether she was afraid of appellant because she knew appellant had been previously convicted of assault of other women and retaliation. The trial court found appellant opened the door for such evidence.
The complainant testified on re-direct as follows:
Q. At the time that this occurred, were you familiar with his prior criminal history?
A. Yes.
Q. And were you aware that prior criminal history included prior convictions for assaulting women that he lived with?
A. Yes, sir.
Q. And you talked with [defense counsel] about him being on parole. Were you familiar at that time that he was on parole for an incident that involved one of the women that he had lived with and assaulted?
A. Yes, sir.
Q. Is that part of what made you scared?
A. Yes, sir.
As a general proposition, when a party introduces matters into evidence, such act invites the other side to reply to that evidence. Wheeler v. State, 67 S.W.3d 879, 892 n.13 (Tex. Crim. App. 2002). Appellant argues that even if the evidence were admissible under Rule 404(b), it should have been excluded under Rule 403 because it was unfairly prejudicial. Rule 403 provides: AAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@ Tex. R. Evid. 403. Relevant evidence is generally admissible, but it is properly excluded under Rule 403 when its probative value is substantially outweighed by the danger of unfair prejudice. In keeping with the presumption of admissibility of relevant evidence, trial courts should favor admission in close cases. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
In determining whether the trial court abused its discretion, we review the following criteria: (1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent=s need for the evidence. Reese v. State, 33 S.W.3d 238, 240B41 (Tex. Crim. App. 2000). Virtually all relevant evidence proffered by a party will be prejudicial to the opposing party. Only unfair prejudice provides a basis for exclusion of relevant evidence. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). Unfair prejudice will substantially outweigh probative value only if there is a clear disparity between the degree of prejudice of the offered evidence and its probative value. Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996). Moreover, there is a presumption that relevant evidence will be more probative than prejudicial. Graff v. State, 65 S.W.3d 730, 739 (Tex. App.CWaco 2001, pet. ref=d).
In this case, the State was entitled to use the evidence of prior convictions to rebut a defensive theory. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). In his cross-examination of the complainant, appellant placed her credibility in issue. During his cross-examination he questioned the complainant=s motives in calling the police and in pressing charges. He intimated that by continuing to engage appellant, the complainant was not afraid of appellant and might even have provoked him to physical violence. It is unlikely the jury would have been impressed in an irrational way because the jury already knew of appellant=s prior family violence convictions at the time the complainant testified. The State did not take an inordinate amount of time to develop the evidence and was entitled to rebut appellant=s theory that the complainant had no fear of appellant.
In light of the presumption of admissibility, we find the trial court did not abuse its discretion in finding the testimony=s probative value was not substantially outweighed by the danger of unfair prejudice. Appellant=s first issue is overruled.
II. Ineffective Assistance of Counsel
In his second through fifth issues, appellant contends his counsel rendered ineffective assistance because (1) he failed to object to evidence of appellant=s retaliation conviction, (2) he failed to object to Gloria Schlueter=s testimony about another extraneous offense, (3) he failed to object to the admission of the penitentiary packet for an extraneous offense, and (4) he recalled the complainant at the punishment phase and prompted her to detail her injuries from the incident that was the basis of this indictment and her injuries from other assaults by appellant.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005). The right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate his counsel=s performance was deficient and not reasonably effective. Id. at 688B92. Second, appellant must show the deficient performance prejudiced his defense. Id. at 693. Appellant must prove that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).
Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is appellant=s burden to rebut this presumption, by a preponderance of the evidence, by producing evidence that illustrates why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).
On direct appeal, appellate courts are generally unable to grant relief for ineffective assistance claims because the record is undeveloped. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). Moreover, there is a strong presumption that trial counsel=s decisions were sound trial strategy. Id. In the absence of a developed record, we may reverse the conviction only if Athe conduct was so outrageous that no competent attorney would have engaged in it.@ Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. See Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. See Strickland, 466 U.S. at 691. Therefore, appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. See McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. See id.
A. Evidence of Prior Assaults Against Family Members
Appellant first complains of his counsel=s failure to object to the complainant=s testimony about his previous retaliation conviction. However, appellant objected to the complainant=s testimony about prior convictions. The portion of the record to which appellant refers is the testimony discussed in issue one. Although appellant=s counsel did not specifically mention the rules of evidence, counsel argued that the complainant should not be permitted to testify about appellant=s prior convictions because the prejudicial effect of such testimony would outweigh its probative value. We find counsel=s objection is specific enough to apprise the trial court of his objection. See Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (stating that in determining whether a complaint has been preserved for appeal, the ultimate consideration is whether the party has clearly made the trial court aware of what he wants and why he is entitled to it at a time when the trial court is in a position to do something about it.). Appellant=s second issue is overruled.
In his third issue, appellant complains of his counsel=s failure to object to Gloria Schlueter=s testimony concerning extraneous offenses. Schlueter=s testimony included extrinsic evidence of one of the jurisdictional enhancements and evidence that she was the victim of the retaliation offense.
Assault causing bodily injury is a class A misdemeanor. Tex. Pen. Code Ann. '' 22.01(a)(1), (b). However, the offense is a third degree felony if the victim is a family member, the actor has a previous conviction for assault, and the victim of that assault was a family member, a member of the person=s household, or a person in a dating relationship with the actor. Tex. Penal Code Ann. '' 22.01(b), (c)(2). When entering a judgment, a trial court is to make an affirmative finding that the offense involved family violence, as defined by Texas Family Code Section 71.004, if the trial court determines that to be the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006); Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006).
The lack of an affirmative finding does not settle the issue, however. In a subsequent prosecution, the State may meet its burden to prove that the defendant has previously been convicted of an offense involving family violence with extrinsic evidence of that fact. See State v. Cagle, 77 S.W.3d 344, 348 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). This may be done, for example, with the testimony of the victim from the previous conviction. See, e.g., Mitchell v. State, 102 S.W.3d 772, 775 (Tex. App.CAustin 2003, pet. ref=d). Schlueter=s testimony as to appellant=s previous assault conviction was admissible because the judgment in that case did not include an affirmative finding of family violence. See Manning v. State, 112 S.W.3d 740, 744 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Therefore, Schlueter=s testimony as to the previous assaults on her was admissible. Counsel does not render ineffective assistance by failing to object to admissible evidence. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). Appellant=s third issue is overruled.
B. Evidence of Retaliation Offense
In his fourth issue, appellant complains of his counsel=s failure to object to Schlueter=s testimony about the retaliation offense and to the admission of the penitentiary packet evidencing the same offense. With regard to the retaliation offense, Schlueter testified:
Q. And he wound up going to prison and being on parole for that, correct?
A. I do not B I=m not sure. I believe he got it for retaliating on my vehicle, and that=s B those are the only two incidents I=m familiar with.
Q. So, that was the retaliation case. You=re the victim in his prior case, where he was put on probation for retaliation, and that involved you, correct? I mean, it was your property?
A. Right. Yes, yes.
At the conclusion of Schlueter=s testimony, the State introduced the penitentiary packet into evidence. The retaliation conviction was not used to establish jurisdiction for the family violence charge, but was used to enhance the third degree felony of assault, family violence to a second degree felony. Evidence of extraneous offenses used for enhancement purposes is not admissible at the guilt-innocence phase of trial. Tex. R. Evid. 404(b). Appellant=s counsel should have objected to Schlueter=s testimony on relevance grounds.
Appellant complains he was harmed by counsel=s failure to object because the evidence of his retaliation conviction was prejudicial to his defense because he was effectively tried for Abeing a criminal generally.@ Appellant filed a pro se motion for new trial, but did not present it to the trial court or present any evidence in support of his motion. Therefore, the record is silent with regard to why appellant=s counsel did not object to the retaliation offense evidence or penitentiary packet. If counsel=s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at 348. Counsel=s reasons for his actions or intentions do not appear in the record, and his conduct could have been part of a reasonable trial strategy. It is arguable that because evidence of appellant=s prior record was already before the jury, trial counsel did not wish to highlight the retaliation conviction. The testimony was brief and referred to property damage only. Without more, we must defer to counsel=s decisions and cannot say that trial counsel=s decision was not based on sound trial strategy. Appellant=s fourth issue is overruled.
C. Extraneous Offense Evidence at Punishment
In his fifth issue, appellant complains of his counsel=s recall of the complainant at the punishment phase of trial. Initially, we note that the State called the complainant at punishment and the defense cross-examined her. Appellant did not recall the complainant during the punishment hearing. The record references in appellant=s brief occur during appellant=s cross-examination of the complainant. On direct examination, the State asked the complainant about all the previous times she had been injured by appellant. She specifically mentioned an incident that occurred on February 8, 2004. On cross-examination, appellant=s counsel questioned the complainant about why she did not mention the February 8 incident during her testimony on guilt-innocence. He questioned her as to the extent of her injuries and whether anyone witnessed her injuries. Counsel continued to question whether the complainant had expressed fear of appellant prior to the incident in the instant case.
During a hearing on punishment, Aevidence 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[.]@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon 2006). Therefore, the testimony of the complainant as to the details of the extraneous offense was admissible. See Yates v. State, 917 S.W.2d 915, 921 (Tex. App.CCorpus Christi 1996, pet. ref=d).
Appellant argues, however, that defense counsel rendered ineffective assistance because he added information that could only be used to make appellant seem more violent. In evaluating the effectiveness of counsel, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). As stated earlier, the record is silent as to why appellant=s counsel cross-examined the complainant on the details of another offense. The record reflects, however, that trial counsel vigorously pursued a strategy of attempting to discredit the complainant=s testimony. Counsel=s cross-examination of the complainant is consistent with that strategy. The fact that other counsel might have pursued a different strategy does not show ineffective representation. See Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Appellant=s fifth issue is overruled.
The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed July 3, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).