Bobby Ernest Smith v. State ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00181-CR
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BOBBY ERNEST SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR31219
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MEMORANDUM OPINION
Appellant Bobby Ernest Smith appeals his conviction for first-degree felony
murder. In two issues on appeal, Smith asserts that his trial counsel did not provide
him with effective assistance of counsel. In his first issue, Smith contends his trial
counsel was ineffective for failing to litigate the admissibility of six prior
convictions, which he contends were inadmissible because of their age and because
no specific facts and circumstances linked the offenses with the charge in this case.
In his second issue, Smith contends his trial counsel was also ineffective by
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eliciting testimony from Smith about the six prior convictions during his direct
examination of Smith. Smith filed a motion for new trial wherein he raised the
ineffective assistance of counsel issues he now raises on appeal. After a hearing on
Smith’s motion for new trial, the trial court denied Smith’s motion. We affirm
Smith’s conviction.
Motion for New Trial
We analyze Smith’s ineffective assistance of counsel issues as a challenge to
the trial court’s denial of his motion for new trial. See Riley v. State, 378 S.W.3d
453, 457 (Tex. Crim. App. 2012). We review the trial court’s denial of a motion
for new trial under an abuse of discretion standard. Colyer v. State, 428 S.W.3d
117, 122 (Tex. Crim. App. 2014). Under this deferential review, we will reverse
the trial court’s denial of the defendant’s motion for new trial only if the trial
court’s decision is clearly erroneous and arbitrary. Riley, 378 S.W.3d at 457. We
view the evidence in the light most favorable to the trial court’s ruling and defer to
the trial court’s credibility determinations. State v. Thomas, 428 S.W.3d 99, 104
(Tex. Crim. App. 2014). “A trial court abuses its discretion if no reasonable view
of the record could support the trial court’s ruling.” Riley, 378 S.W.3d at 457.
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Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must
prove (1) counsel’s representation fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
deficiency, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984); Hernandez v. State, 726 S.W.2d
53, 55, 56-57 (Tex. Crim. App. 1986) (applying Strickland standard to ineffective-
assistance claims under the Texas Constitution). “This two-pronged test is the
benchmark for judging whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a reliable result.” Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim.
App. 1999). An appellant bears the burden of proving by a preponderance of the
evidence that his counsel was ineffective. Perez v. State, 310 S.W.3d 890, 893
(Tex. Crim. App. 2010). When it is shown that “no reasonable trial strategy could
justify the trial counsel's conduct, counsel's performance falls below an objective
standard of reasonableness as a matter of law, regardless of whether the record
adequately reflects the trial counsel's subjective reasons for [his actions].” Andrews
v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
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In our determination of the effectiveness of counsel, we are “highly
deferential to trial counsel and avoid the deleterious effects of hindsight.”
Thompson, 9 S.W.3d at 813. An appellate court must indulge a strong presumption
that counsel’s conduct fell within the wide range of reasonable professional
assistance and that counsel’s conduct was the result of sound trial strategy.
Strickland, 466 U.S. at 689. We review the totality of counsel’s representation, and
do so in light of the circumstances of each case. Lopez v. State, 343 S.W.3d 137,
143 (Tex. Crim. App. 2011). An allegation of ineffectiveness will be sustained
only if it is firmly founded in the record and if the record affirmatively
demonstrates the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.
Admissibility of Remote Prior Offenses
Several months prior to trial, defense counsel filed a request for notice of the
State’s intent to introduce evidence of Smith’s other crimes, wrongs, or bad acts. In
response, the State filed a notice of intent to use evidence of Smith’s prior
convictions and extraneous offenses, and specifically identified the following: (1)
theft in 1987; (2) burglary of a habitation in 1989; (3) burglary of a habitation in
1988; (4) possession of cocaine in 1988; (5) burglary of a habitation 1991; (6)
forgery in 1991; (7) a second forgery in 1991; and (8) driving while intoxicated in
2007. The trial of this matter occurred in April 2015. Smith chose to testify in his
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own defense. However, prior to Smith taking the stand, and outside the presence of
the jury, both the court and defense counsel apparently warned Smith that he
would be subject to impeachment by the State on his prior convictions should he
choose to testify. Thereafter, the State announced its intent to question Smith about
his prior felony convictions for impeachment purposes.
During the direct examination of Smith, defense counsel elicited testimony
about Smith’s six prior felony convictions. Smith testified that he was convicted
for burglary of a habitation in 1986; burglary of a habitation in 1988; felony
possession of cocaine in 1988; burglary of a habitation in 1991; felony forgery in
1991; and a second forgery conviction in 1991. The State did not cross-examine
Smith regarding his prior offenses.
On appeal, Smith first complains that his counsel was ineffective for not
challenging the admissibility of the six prior offenses that were each more than ten
years old. In his second issue, Smith contends that his counsel was ineffective for
subsequently introducing testimony about these prior remote offenses during his
direct examination of Smith. Both of Smith’s issues are premised upon Smith’s
contention that the prior offenses were inadmissible pursuant to Rule 609(b) of the
Texas Rules of Evidence. We therefore analyze the admissibility of these offenses
pursuant to Rule 609(b).
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Generally, the trial court must admit evidence of a criminal conviction
offered to impeach a witness’s character for truthfulness if: “(1) the crime was a
felony or involved moral turpitude . . . ; (2) the probative value of the evidence
outweighs its prejudicial effect to a party; and (3) it is elicited from the witness or
established by public record.” Tex. R. Evid. 609(a). For criminal convictions that
are more than ten years old or when it has been more than ten years since the
witness’s release from confinement for the conviction, Tex. R. Evid. 609(b)
provides that evidence of such a remote criminal conviction is only admissible if it
is shown that “its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.” Id.
There is no dispute that the six prior convictions at issue in this case were
felony convictions. There is also no dispute that more than ten years had passed
since Smith’s prior convictions or his release from confinement for such
convictions. Thus, Smith’s prior convictions are subject to the heightened standard
of admissibility set forth in Rule 609(b). See Tex. R. Evid. 609(b). Evidence of
Smith’s prior convictions was inadmissible unless the trial court determined the
probative value of the evidence, supported by specific facts and circumstances,
substantially outweighed the prejudicial effect. See id.
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The Court of Criminal Appeals set out a non-exclusive list of factors that we
should consider when determining whether the probative value of a prior
conviction outweighs its prejudicial effect, including: (1) the impeachment value of
the prior crime; (2) the temporal proximity of the past crime relative to the charged
offense and the witness’s subsequent history; (3) the similarity between the prior
conviction and the offense being prosecuted; (4) the importance of the witness’s
testimony; and (5) the importance of the credibility issue. Theus v. State, 845
S.W.2d 874, 880 (Tex. Crim. App. 1992); see Leyba v. State, 416 S.W.3d 563, 571
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (considering the Theus factors
in determining admissibility under Texas Rule of Evidence 609(b)).
The impeachment value of crimes that involve deception is higher than those
involving violence, while crimes involving violence have a higher potential for
prejudice. Theus, 845 S.W.2d at 881. If the prior conviction at issue relates more to
deception, then the first factor weighs in favor of admission. Id. However, if the
prior conviction involves violence, then this factor weighs in favor of exclusion.
See id.
Temporal proximity “favor[s] admission if the past crime is recent and if the
witness has demonstrated a propensity for running afoul of the law.” Id. However,
if the past crimes are similar to the current charge, then this factor disfavors
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admission because the similarity presents a situation in which the jury might
convict on the perception of a past pattern of conduct instead of on the facts of the
charged case. Id.
The last two factors are related and favor admission when the case involves
only the testimony of the defendant and the State’s witnesses because this escalates
the importance of the defendant’s credibility and testimony. Id. The Theus factors
are not exclusive and “[t]he application of these factors . . . cannot be performed
with mathematical precision[.]” Id. at 880. Recently, the Court of Criminal
Appeals explained that “[i]n deciding whether, in the interests of justice, the
probative value of a remote conviction substantially outweighs its prejudicial
effect, a court may consider all relevant specific facts and circumstances, including
whether intervening convictions dilute the prejudice of that remote conviction.”
Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015).
Smith’s three convictions for burglary of a habitation and his two
convictions for forgery are convictions for crimes of deception. See Woodall v.
State, 77 S.W.3d 388, 395 (Tex. App.—Fort Worth 2002, pet. ref’d) (forgery);
White v. State, 21 S.W.3d 642, 647 (Tex. App.—Waco 2000, pet. ref’d) (burglary
of a habitation). Thus, the impeachment value of these convictions is high and
favors admission. See Woodall, 77 S.W.3d at 395; White, 21 S.W.3d at 647.
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Smith’s conviction for possession of cocaine, however, is generally not a
crime involving deception, but it is also not a crime involving violence. See Miller
v. State, 196 S.W.3d 256, 268 (Tex. App.—Fort Worth 2006, pet. ref’d) (mem.
op.) (concluding that possession of a controlled substance does not involve
deception); Denman v. State, 193 S.W.3d 129, 136 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (concluding that a conviction for delivery of cocaine is not a
crime of moral turpitude or a crime of violence). The first factor does not weigh in
favor of or against the admission of evidence of the possession of cocaine
conviction.
As mentioned above, there seems to be no dispute that the past convictions
were not recent in that the date of the prior convictions or release dates all precede
the date of the charged offense by more than twenty years. This factor weighs in
favor of exclusion of evidence concerning the past offenses. The third factor
requires that we consider the similarity, if any, between the past offenses and the
offense for which Smith is now on trial. Smith’s current charge is murder. The
State alleged that Smith intentionally or knowingly caused the victim’s death by
shooting the victim with a firearm. There are no facts in the record before us that
reveal any similarities between Smith’s current charge and his prior convictions for
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burglary of a habitation, forgery, and possession of cocaine. Accordingly, the third
factor would weigh in favor of admission.
Regarding the fourth and fifth Theus factors, Smith was the only witness to
testify in support of his theory that he killed the victim in self-defense. As the only
defense witness who testified, Smith’s credibility and testimony were crucial. See
Theus, 845 S.W.2d at 881. As the importance of the credibility of the witness
increases, so, too, does the relevancy of any evidence that tends to impeach his
credibility. See id. These two final factors weigh in favor of admission. See id.
Given that four factors weigh in favor of allowing the State to impeach
Smith on his forgery and burglary convictions and three factors weigh in favor of
allowing the State to impeach Smith on his possession conviction, we are unable to
conclude that it would have been an abuse of discretion for the trial court to have
determined that the probative value substantially outweighed the prejudicial effect
and to overrule an objection under Rule 609 had defense counsel made one.
Consequently, in the context of an ineffective-assistance claim, Smith has not
shown his counsel was deficient by failing to challenge the admissibility of
Smith’s prior convictions.
Smith also complains that his counsel was deficient in eliciting testimony
from Smith about his prior offenses. At the motion for new trial hearing, defense
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counsel testified that he had filed a request for notice of prior convictions and bad
acts and that the State notified him of its intent to introduce evidence of Smith’s
prior convictions. He testified that the State made it clear to him that it intended to
impeach Smith with his prior convictions if Smith chose to testify. He explained
that from a strategic standpoint, he believed the State would be allowed to impeach
Smith with his prior convictions and that if Smith did not tell the jury about the
convictions first, then it would appear that Smith was trying to hide something,
which he believed would have a negative impact on the jury’s evaluation of
Smith’s credibility.
Defense counsel testified that he informed Smith that he believed the prior
convictions would be admissible to impeach him should Smith choose to testify.
Defense counsel did not discuss Rule 609 with Smith because he did not think the
Rule 609 challenge would be successful. However, defense counsel discussed with
Smith many times that the State had a right to impeach him with his prior offenses.
Defense counsel explained that his extensive legal experience coupled with his
experience with the trial judge led him to believe the trial judge would have found
the prior convictions admissible. Defense counsel testified that because Smith
claimed he was defending himself when the victim was shot, it was of paramount
importance that Smith appear truthful and open with the jury. Defense counsel
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testified that because he wanted to establish Smith as a credible person, he brought
the prior convictions out during his direct examination of Smith.
Being mindful that we are to be “highly deferential to trial counsel and avoid
the deleterious effects of hindsight,” we conclude that counsel made a strategic
decision to not object to the admissibility of the prior convictions and to elicit the
testimony about Smith’s prior convictions during his direct examination of Smith
because he believed the court would ultimately admit evidence about Smith’s prior
convictions. Thompson, 9 S.W.3d at 813; see Ohler v. United States, 529 U.S. 753,
757-58 (2000) (explaining that defense counsel must make a strategic decision
whether to introduce prior convictions on direct examination to “remove the sting
or to take [his] chances with the prosecutor’s possible elicitation of the conviction
on cross-examination”). Smith has failed to show that his defense counsel’s
performance fell below an objective standard of reasonableness. 1 See Strickland,
466 U.S. at 687-88. Neither has he shown that no reasonable trial strategy could
justify defense counsel's conduct. See Andrews, 159 S.W.3d at 102. Therefore, we
hold the trial court did not err in denying Smith’s motion for new trial.
1
Because Smith has not shown that defense counsel’s performance was
deficient, we need not reach the prejudice prong of Strickland. See Strickland v.
Washington, 466 U.S. 668, 697 (1984); Mallett v. State, 65 S.W.3d 59, 68 (Tex.
Crim. App. 2001).
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Accordingly, we overrule Smith’s two issues and affirm the judgment of the trial
court.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on May 19, 2016
Opinion Delivered July 13, 2016
Do not publish
Before Kreger, Horton, and Johnson, JJ.
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