Affirmed and Memorandum Opinion filed June 5, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00608-CR
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JONATHON GABRIEL COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1043726
M E M O R A N D U M O P I N I O N
Jonathan Gabriel Cooper appeals a conviction for burglary of a habitation with the intent to commit, or attempt to commit, sexual assault[1] on the grounds that: (1) the trial court erred in overruling his objection to the admission of his deadly conduct conviction during the guilt/innocence phase of trial; (2) he was denied the effective assistance of counsel during the guilt/innocence and punishment phases of the trial; (3) the prosecutor improperly referred to appellant=s extraneous offenses as convictions during her punishment closing argument; and (4) the prosecutor elicited uninvited character evidence during the guilt/innocence phase of trial. We affirm.
Deadly Conduct Conviction
Appellant=s first issue contends that any probative value of the evidence of his deadly conduct conviction was outweighed by the danger of unfair prejudice[2] because the admission of that evidence improperly conveyed the judge=s opinion on guilt.[3]
However, the trial court=s ruling was made at a bench conference, outside the presence of the jury. Appellant=s brief fails to explain or cite authority indicating how a trial court=s decision to admit or exclude evidence, alone, can convey a trial court=s opinion on guilt of the charged offense. Because appellant=s first issue thus fails to demonstrate that the trial court=s action caused the evidence to be unfairly prejudicial, it is overruled.
Ineffective Assistance
Appellant=s second through eighth issues contend that his trial attorney performed ineffectively in numerous respects. To prevail on an ineffective assistance claim, appellant must show that his defense attorney's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Garza v. State, 213 S.W.3d 338, 347B48 (Tex. Crim. App. 2007). An ineffective assistance claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Garza, 213 S.W.3d at 348; Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 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. Garza, 213 S.W.3d at 348.
Appellant=s second and third issues complain of his attorney asking, during voir dire, whether jurors could consider probation in an offense involving sexual assault because this question compelled appellant to take the stand Aless it be held as a circumstance against him.@ Appellant=s brief neither explains, nor cites authority for, why this question was not a sound trial strategy under the circumstances or how it conveyed a false impression that compelled him to take the stand to correct. Accordingly, appellant=s second and third issues are overruled.
Appellant=s fourth issue asserts that his conviction and sentence was the Aresult of cumulative effect of the deficiencies of his counsel.@ However, because his brief fails to identify any deficient performance by his trial counsel, it fails to establish that it could have resulted in cumulative error.[4] Therefore, appellant=s fourth issue is overruled.
Appellant=s brief does not state a fifth issue, but the discussion under the heading, APoint of Error No. 5" contends that the Atrial court allowed the case to bolster the story of the complaining witness when such was clearly hearsay.@[5] However, in the only portion of the reporter=s record that is cited in this section of the brief, the only objection made by defense counsel was based on relevance and was sustained by the trial court. Because the discussion of this issue cites no objection that comports with his complaint on appeal[6] and on which he obtained an adverse ruling,[7] it presents nothing for our review and is overruled.
Appellant=s sixth issue complains that his defense counsel failed to object to the State=s questions concerning the particular facts of appellant=s deadly conduct conviction that were not stated in the judgment. However, because appellant=s trial counsel did object to the State=s offer of this evidence, his sixth issue is unsupported by the record and is overruled.
Appellant=s seventh issue contends that his trial counsel was ineffective in failing to request a lesser-included offense instruction on burglary of a habitation with intent to commit theft, burglary of a habitation (criminal mischief), assault, or sexual assault. Because the record is silent as to the reasons for counsel's decision not to request such an instruction, appellant's seventh issue fails to rebut the presumption of reasonable trial strategy.[8] In addition, appellant=s brief does not explain how: (1) the elements of any of the claimed lesser included offenses are the same as or less than the statutory elements of the charged offense as modified by the indictment; or (2) the evidence actually presented to prove the elements of the charged offense could also show guilt of only a lesser-included offense. See, e.g., Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005). Therefore, appellant=s seventh issue affords no basis for relief and is overruled.
Appellant=s eighth issue contends that his trial counsel was ineffective for failing to object, during the punishment phase, to the relevancy of testimony about appellant=s extraneous offenses of having sex with an underaged female. However, appellant has not cited authority or explained why such evidence would have been inadmissible during the punishment phase.[9] Accordingly, appellant=s eighth issue is overruled.
Improper Argument
Appellant=s ninth issue contends that the prosecutor improperly referred to appellant=s unadjudicated extraneous offenses as actual final convictions during her punishment closing argument.[10] However, because appellant failed to object to the prosecutor=s jury argument, he has not preserved that complaint for appeal. See Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004). Accordingly, appellant=s ninth issue is overruled.
Character Evidence
Appellant=s tenth issue contends that the prosecutor improperly questioned appellant about his reputation when such character evidence[11] was uninvited. However, at trial, appellant objected to the complained-of evidence on the ground of relevance. Because appellant's trial objection does not comport with the issue he raises on appeal, it is not preserved for our review.[12] Accordingly, appellant=s tenth issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed June 5, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty and assessed punishment at 25 years confinement and a $10,000 fine.
[2] See Tex. R. Evid. 403. Evidence is Aunfairly prejudicial@ only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
[3] See Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979) (AIn ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.@). To constitute reversible error under this rule, a trial court's comment to the jury must be such that it is reasonably calculated to benefit the State or to prejudice the rights of the defendant. Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986).
[4] See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (acknowledging that no authority has held that non‑errors may in their cumulative effect cause error).
[5] This section further states that AOfficer Miller, a State=s witness and not only was the witness allowed to state the stories of each, he was allowed to give his opinion as to the credibility of both the complaining witness and the [a]ppellant it being prejudicial hearsay@ and that A[s]uch testimony constitutes patent hearsay and unnecessary bolstering because the evidence did not rehabilitate the witness on the specific matter of impeachment.@
[6] See, e.g., Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
[7] See, e.g., Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (AAlso, the complaining party must have obtained an adverse ruling from the trial judge, or objected to the trial judge=s refusal to rule, to preserve error in the admission of evidence.@).
[8] See Garza, 213 S.W.3d at 348; Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) (noting that decision not to request instruction on the lesser-included offense could be a reasonable all‑or‑nothing trial strategy).
[9] See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon 2006) (ARegardless 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.@); White, 160 S.W.3d at 53 (stating that, to show ineffective assistance of counsel for the failure to object during trial, the defendant must show that the trial judge would have committed error in overruling the objection).
[10] Although it does not bear on our disposition, appellant=s point of error nine heading states the prosecution made the harmful comments during closing argument, whereas the discussion under this heading cites to the prosecutor=s cross-examination of appellant during the punishment stage of the trial. During the prosecution=s cross-examination of appellant at the punishment stage of the trial, appellant=s trial counsel objected to the implication that appellant had been convicted of certain extraneous offenses based on relevance. However, the prosecutor did not state that appellant had been convicted of any offense, other than the deadly conduct offense, of which he in fact had been convicted. Moreover, appellant fails to cite any authority holding that the prosecution=s statements were improper or that the trial court abused its discretion in allowing the statements. See Tex. R. App. P. 38.1(h); Brumit, 206 S.W.3d 639, 646 n.3 (Tex. Crim. App. 2006); Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006).
[11] See Tex. R. Evid. 404(a)(1) (Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) evidence of a pertinent character trait offered: (A) by an accused in a criminal case, or by the prosecution to rebut the same, or (B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same.).
[12] See Tex. R. App. P. 33.1(a)(1); Swain, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005), cert. denied, 127 S. Ct. 145 (2006); Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (holding that relevancy objection does not preserve appellate complaint of admissibility of character evidence under Rule 404).