H. C. Stiggers v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00661-CR H. C. Stiggers, Appellant v. The State of Texas, Appellee FROM THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY NO. F94-39523-HK, HONORABLE CHARLES SHERRILL, JUDGE PRESIDING Appellant H. C. Stiggers was convicted, in a jury trial, of the offense of delivery of less than 28 grams of cocaine. Controlled Substance Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.112, 1989 Tex. Gen. Laws 2230, 2935 (Tex. Health & Safety Code Ann. § 481.112, since amended). The trial court assessed appellant's punishment, enhanced by proof of two prior felony convictions, at imprisonment for 30 years. In his sole point of error on appeal, appellant asserts that he was denied the effective assistance of trial counsel. We will affirm the judgment of the trial court. To show ineffective assistance of counsel, appellant must show that: (1) trial counsel's performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115, 118 (Tex. App.--Austin 1994, pet. ref'd); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance is to be judged by the "totality of representation" provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). In deciding an ineffective-assistance claim, this Court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct--not by hindsight. We must then determine, in light of all the circumstances, whether the acts or omissions are outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. Appellant bears a heavy burden to prove his ineffective-assistance claim. Counsel is strongly presumed to have provided adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Id. We must not look at the errors of counsel in a vacuum. As a general rule, isolated instances in the record reflecting errors of omission or commission do not necessarily render counsel's representation ineffective. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992); Ex parte Owens, 860 S.W.2d 727, 729 (Tex. App.--Austin 1993, pet. ref'd). Appellant argues that in four instances in the record defense counsel's ineffectiveness is demonstrated. First, appellant says that, during jury voir dire, trial counsel, without objection, allowed the prosecutor to improperly comment on appellant's right to remain silent and his failure to testify. Appellant contends that this deprived him of constitutional and statutory rights. U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (West 1979). In support of this argument counsel quotes from the record: There may be all sorts of reasons why I don't want to testify. I might have a felonious background. I might not be a good public speaker. I might have some type of speech impediment. I might not be the smartest man in the world. I might be guilty. There's all sorts of reasons why I may not want to testify. However, if I don't testify, you cannot consider it, it's null and void. (Emphasis added). This statement was made in the context of explaining reasonable doubt and appellant's right against self-incrimination. It was made during jury voir dire--not during jury argument after the conclusion of testimony. The record does not reflect that appellant informed the court or prosecutor prior to this time that appellant would not testify. See McCary v. State, 477 S.W.2d 624, 627 (Tex. Crim. App. 1972); Walter v. State, 628 S.W.2d 526, 536 (Tex. App.--Fort Worth 1982, no pet.). It appears that the prosecutor was attempting to qualify the jury and preparing to exercise the State's peremptory challenges. Jackson v. State, 536 S.W.2d 371, 375 (Tex. Crim. App. 1976). The prosecutor's interrogation was not of such character that the jury would necessarily have taken it to be a comment on appellant's subsequent failure to testify. Meyers v. State, 527 S.W.2d 307, 308-09 (Tex. Crim. App. 1975). Much more direct references to an accused's failure to testify have not been held to be reversible error. See Jackson v. State, 536 S.W.2d at 375 and Hill v. State, 480 S.W.2d 670, 674 (Tex. Crim. App. 1972). The objection that appellant contends his defense counsel should have made would have been without merit. Passmore v. State, 617 S.W.2d 682, 685 (Tex. Crim. App. 1981). Therefore, trial counsel's failure to object does not demonstrate ineffective representation. King v. State, 649 S.W.2d 42, 45 (Tex. Crim. App. 1983). Jury voir dire in this case does not resemble that which was characterized as a "three ring circus" in the case relied upon by appellant. Knight v. State, 839 S.W.2d 505, 507 (Tex. App.--Beaumont 1992, no pet.). In that case, prospective jurors responding to the State's voir dire assert beliefs, without objection, that: (1) a defendant, if he were innocent, would testify in his own defense, (2) people who were indicted were guilty in some degree, (3) a maximum penalty should always be assessed, and (4) the death penalty should be assessed in a burglary case. The second instance of alleged ineffectiveness complained of also occurred during jury voir dire when defense counsel failed to object to the prosecutor's explanation of the range of punishment applicable that included a reference to "a boy scout." Does anybody have a concern about any of the punishment range, five to life? That's the range. I mean, for all we know, when the evidence actually happens, we might find out this defendant's a boy scout. He might be deserving of the minimum. Or we might find out that he's done this or some similar crime five or six times. He might have a record as long as my arm. And then you might want to assess more towards the maximum. But at this time all you've got to do is just keep an open mind. Can everybody on the first row keep an open mind as far as five to life? And if you can't, that's fine, just let me know about it. While it is not proper to inquire how a venireperson would respond to particular circumstances as presented in a hypothetical question, it is proper to use hypothetical fact situations to explain the application of the law. Cuevas v. State, 742 S.W.2d 331, 336 n.6 (Tex. Crim. App. 1987). The explanation complained of did not ask prospective jurors to commit themselves in a given set of facts. Furthermore, no prejudice is shown because appellant elected to have the trial court rather than the jury assess his punishment. Third, appellant faults his trial counsel for failure to object to extraneous offense evidence. Appellant notes that the trial court granted his pretrial request for notice if the State intended to offer extraneous offense evidence. When the extraneous offense evidence was offered, appellant's trial counsel did not object. However, when the State in jury argument mentioned the extraneous offense, appellant's trial counsel objected. Appellant argues that this shows his counsel's failure to object to the admission of the evidence was not trial strategy but rather demonstrated his ineffectiveness. A brief summary of the facts is necessary. On January 10th, a prostitute brought undercover agent T.A. King to a "crack house" where they were admitted by appellant. While he was in the house, King observed people using drugs and committing sexual acts. King purchased cocaine by giving money to one man and receiving the cocaine from another man, neither man being appellant. King returned to the house on January 11th where he was admitted by appellant and directed to another man. King purchased cocaine in the same manner as he had the day before. Appellant was indicted for the offense committed on January 11th. On neither day did appellant accept payment or actually deliver the cocaine to King. It was the State's theory that the January 10th incident served as circumstantial evidence to show that appellant was guilty of the January 11th offense as a party. The jury was instructed that in order to convict appellant it must find that appellant acted as a party by intentionally or knowingly encouraging and aiding Edward Lilly in the alleged delivery of cocaine to King. The State contends that appellant encouraged and aided in the commission of the offense by standing guard at the "crack house" door watching for law enforcement officers and by screening prospective customers to determine whether or not to admit them into the house. By his cross-examination and jury argument, appellant's counsel attempted to persuade the jury that his sixty-six year old client was a "crack house" customer and that he was merely standing near the door when King and the prostitute entered the house. Appellant has not replied to the State's argument that appellant's trial counsel was not remiss in failing to object to the extraneous offense evidence because the evidence of the January 10th delivery of cocaine was relevant and admissible. If the extraneous offense evidence were admissible, trial counsel's failure to object did not demonstrate that he was ineffective. The admissibility of extraneous offense evidence is governed by the rules of criminal evidence. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh'g). The Court of Criminal Appeals has recently iterated that while evidence introduced solely to show character conformity is inadmissible, if evidence (1) is introduced for a purpose other than character conformity, (2) has relevance to a "fact of consequence" in a case, and (3) remains free of any other constitutional or statutory prohibitions, it is admissible. Rankin v. State, No. 374-94, slip op. at 2 (Tex. Crim. App. April 10, 1996). When the admission of relevant evidence stands unobstructed by a constitution, statute, or rule, the judge must allow it in. Id. All relevant evidence is admissible unless otherwise provided by the constitution, statute, or rules. Tex. R. Crim. Evid. 402. Relevant evidence is that having a tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Crim. Evid. 401. Even though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, or if it will mislead the jury, cause confusion of the issues, undue delay, or needless presentation of cumulative evidence. Tex. R. Crim. Evid. 403. Evidence that appellant committed other crimes, wrongs, or acts may be admitted if it has relevance apart from its tendency to prove appellant's character and that he acted in conformity therewith. Tex. R. Crim. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Such evidence is admissible subject to the trial court's discretion to exclude it if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. 403; Montgomery, 810 S.W.2d at 387. If the trial court operates within the boundaries of its discretion, an appellate court should not disturb the trial court's decision. Montgomery, 810 S.W.2d at 390. Evidence from which the jury could determine whether appellant was merely present as a crack house customer or whether he was a party encouraging and aiding in the delivery of cocaine by watching for law enforcement officers and in screening prospective customers were facts of consequence. The evidence which has been summarized relating to the January 10th evidence, apart from showing character conformity, has relevance tending to make it more probable that appellant was encouraging and aiding in the delivery of cocaine on January 11th. We only need to determine here whether the extraneous offense evidence is relevant because appellant has made no argument that this evidence was offered solely to show character conformity, that its probative value was substantially outweighed by the danger of unfair prejudice, or that it misled the jury, caused confusion of the issues, undue delay, or needless presentation of cumulative evidence. Because we find that the complained of extraneous offense evidence was admissible it follows that trial counsel's failure to object to this evidence did not demonstrate ineffective representation. Fourth, appellant complains that his trial counsel was ineffective because he failed to preserve for appellate review the trial court's ruling on three trial objections. When these three objections were made, defense counsel may have stated reasons for the objections to the trial court out of the hearing of the court reporter and if reasons were stated they were unreported. We have viewed the objections in the context of the record and we are unable to conceive of, and appellate counsel has not suggested, any proper legal reasons that could have been stated that would have shown either error or prejudice. Appellant has failed to sustain his burden to prove his ineffective-assistance claim of unpreserved error. Keiser v. State, 880 S.W.2d 222, 224-25 (Tex. App.--Austin 1994, pet. ref'd). In determining whether appellant had effective assistance of counsel, an appellate court must make an independent judgment based on mixed questions of law and fact. Ex parte Owens, 860 S.W.2d at 729. We have examined the record in light of the applicable law and conclude that on the record before us the totality of trial counsel's representation of appellant was well within the standard required by Strickland. Appellant's point of error is overruled. The judgment of the trial court is affirmed. Carl E. F. Dally, Justice Before Chief Justice Carroll, Justices Davis* and Dally** Affirmed Filed: August 14, 1996 Do Not Publish * Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988). ** Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988). ues, undue delay, or needless presentation of cumulative evidence. Tex. R. Crim. Evid. 403. Evidence that appellant committed other crimes, wrongs, or acts may be admitted if it has relevance apart from its tendency to prove appellant's character and that he acted in conformity therewith. Tex. R. Crim. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Such evidence is admissible subject to the trial court's discretion to exclude it if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. 403; Montgomery, 810 S.W.2d at 387. If the trial court operates within the boundaries of its discretion, an appellate court should not disturb the trial court's decision. Montgomery, 810 S.W.2d at 390. Evidence from which the jury could determine whether appellant was merely present as a crack house customer or whether he was a party encouraging and aiding in the delivery of cocaine by watching for law enforcement officers and in screening prospective customers were facts of consequence. The evidence which has been summarized relating to the January 10th evidence, apart from showing character conformity, has relevance tending to make it more probable that appellant was encouraging and aiding in the delivery of cocaine on January 11th. We only need to determine here whether the extraneous offense evidence is relevant because appellant has made no argument that this evidence was offered solely to show character conformity, that its probative value was substantially outwe