David Lee Webb v. State

Affirmed and Memorandum Opinion filed April 12, 2007 Affirmed and Memorandum Opinion filed April 12, 2007. In The Fourteenth Court of Appeals ____________ NOS. 14-06-00445-CR 14-06-00446-CR ____________ DAVID LEE WEBB, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1036197, 1036198 M E M O R A N D U M   O P I N I O N Appellant, David Lee Webb, appeals following his conviction on two counts of aggravated sexual assault which resulted in an automatic sentence of life in prison.[1] In his first point of error, appellant contends that the trial court erred in denying his motion for mistrial after a witness testified that appellant had been in prison for an extraneous offense. In his second point of error, appellant argues that he was denied effective assistance of counsel. We affirm. I. Analysis In his first point of error, appellant argues that the trial court erred in denying his motion for mistrial after a witness testified that appellant had been in prison. Appellant complains about the following exchange between the prosecutor and complainant=s mother in which complainant=s mother is providing some background information: Q: Did you move out of that house? A: I moved to Hope, Arkansas. Q: And who did you move to Hope, Arkansas with? A: My mother. Q: Was David [appellant] with you or no? A: No, he was in prison.[2] Appellant=s trial counsel immediately objected and requested that the trial court instruct the jury to disregard the statement. The trial court sustained the objection and instructed the jury to disregard the witness= answer. Counsel then moved for mistrial, which the trial court denied. We review the trial court=s denial of a motion for mistrial under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Primes v. State, 154 S.W.3d 813, 814 (Tex. App.CFort Worth 2004, no pet.). A mistrial is the trial court=s remedy for improper conduct that is Aso prejudicial that expenditure of further time and expense would be wasteful and futile.@ Hawkins, 135 S.W.3d at 77 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). A witness= inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). An exception exists when the testimony is clearly calculated to inflame the minds of the jury or was of such damning character as to suggest that it would be impossible to reverse the harmful impression from the jurors= minds. Id. As support for his contention that complainant=s mother=s testimony warrants reversal, appellant cites to Blakeney v. State, 911 S.W.2d 508 (Tex. App.CAustin 1995, no pet.). Appellant concedes that the jury was not instructed to disregard the evidence in that case. See id. at 514-17. When the jury is instructed to disregard the extraneous offense, such error is generally considered cured. See Rojas, 986 S.W.2d at 250 (AA witness= inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard.@). This case more closely resembles the facts in Campos v. State, 589 S.W.2d 424 (Tex. Crim. App. 1979). In that case, the prosecutor asked the witness whether the appellant was Athrown back in jail@ after being arrested and spending time in jail for the charged offense. Id. at 427. The trial court sustained the appellant=s objection, instructed the jury to disregard the statement, and denied the appellant=s motion for mistrial. Id. The Court of Criminal Appeals found that Athe trial court=s action in sustaining the objection and instructing the jury cured the error concerning appellant=s extraneous arrest.@ Id. at 428. Appellant asserts that the mother=s testimony was intentional based on (1) the trial court=s admonition, prior to her testimony, that she should not discuss or allude to appellant=s prior convictions and (2) the Aacrimonious relationship@ between her and appellant. We do not agree with appellant=s conclusion. Most trial lawyers would readily attest that witnesses sometimes mistakenly deviate from carefully conveyed instructions. Appellant does not explain why this situation is any different. The mother=s response that appellant (her husband at the time in question) did not accompany her when she relocated because he was in prison was a natural retort to the question asked. Although the response implicated facts that the jury was not intended to hear, we cannot say that such a response was calculated to inflame the minds of the jury. See Rojas, 986 S.W.2d at 250. In sum, we find that the trial court=s instruction to the jury to disregard in this case cured any error regarding appellant=s prior offense. See Campos, 589 S.W.2d at 428; see also Rojas, 986 S.W.2d at 250 (finding that the trial court=s instruction to disregard the witness= statements regarding the defendant=s Apast anger@ and Aviolence@ cured any error); Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994) (finding witness= reference to an extraneous offense was cured by the trial court=s instructions to disregard); Iennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (finding that witness= reference to the defendant=s being Asent to the penitentiary@ was cured by trial court=s prompt instructions to disregard); Coe v. State, 683 S.W.2d 431, 435-36 (Tex. Crim. App. 1984) (holding that instruction to the jury to disregard the testimony that defendant committed Aother robberies@ cured any error). Therefore, the trial court did not abuse its discretion in denying appellant=s motion for mistrial. We overrule appellant=s first point of error. In appellant=s second point of error, he contends that he was denied effective assistance of counsel when counsel failed to prevent the introduction of an extraneous offense and failed to object to that evidence once it was introduced. In assessing the effectiveness of counsel, we apply the standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In order to prove ineffective assistance of counsel, appellant must prove that (1) counsel=s conduct fell below an objective standard of reasonableness, and (2) there exists a reasonable probability the results would have been different but for counsel=s deficient performance. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 57. Appellant has the burden of proving his trial counsel was ineffective by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When reviewing a claim for ineffective assistance of counsel, there is a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland, 466 U.S. at 689). An ineffective assistance claim must be Afirmly founded in the record,@ and the record must affirmatively demonstrate the claim=s merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance. Id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before an appellate court may deem counsel ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Appellant specifically complains about evidence the jury heard that he had thrown his children off of the roof of a house into a swimming pool. Counsel never objected to this evidence; in fact, he referenced the evidence multiple times in his closing statement Appellant has failed to provide an adequate record explaining counsel=s reasons behind his conduct at trial. In his closing argument, counsel juxtaposed appellant=s admission that he threw the children off the roof with appellant=s denial of sexually contacting complainant. Perhaps counsel was attempting to show that appellant is willing to admit when he has committed a bad act (throwing a child off of a roof into a pool); thus, appellant was being truthful in denying that he sexually contacted complainant. Nothing else in the record suggests counsel=s motivation in allowing the evidence. As a result, the record is insufficient to determine that counsel=s conduct was unreasonable. We also do not find counsel=s conduct to be so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. Consequently, we find that appellant has failed to rebut the presumption that counsel acted reasonably. See Thompson, 9 S.W.3d at 813; Green v. State, 191 S.W.3d 888, 894‑95 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). We overrule appellant=s second point of error. We affirm the trial court=s judgment. /s/ Adele Hedges Justice Judgment rendered and Memorandum Opinion filed April 12, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant pled true to enhancement paragraphs alleging a prior conviction for aggravated sexual assault of a child. Those enhancements resulted in an automatic life sentence for conviction of aggravated sexual assault in this case. See Tex. Penal Code ' 12.42(c)(2). [2] This prison term probably refers to appellant=s prior conviction for aggravated sexual assault which was used as a sentence enhancement in this case.