Kevin Rahe v. State ( 2013 )

Affirmed and Memorandum Opinion filed February 5, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00707-CR
NO. 14-11-00708-CR
KEVIN RAHE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause Nos. 64902 & 64903
MEMORANDUM OPINION
A jury convicted appellant Kevin Rahe of two counts of burglary of a
vehicle with two or more previous convictions and assessed punishment for each
offense at two years’ confinement, with the sentences to run concurrently. In this
appeal, appellant alleges ineffective assistance of counsel at his trial. We affirm.
BACKGROUND
On March 18, 2011, appellant pawned several items — including a Garmin
GPS system and an Apple iPod — that had been reported stolen from two separate
vehicles earlier that day. After an investigation, Officer Jeffrey Jernigan arrested
appellant and returned the pawned items to their rightful owners. Appellant was
indicted on two counts of burglary of a vehicle with two or more prior convictions,
and the case proceeded to a jury trial.
During cross-examination of Officer Jernigan, appellant’s trial counsel
mentioned a man named Brandon Logan. Jernigan was familiar with Logan as a
man who lived near the neighborhood where the pawned items were stolen and
who had a reputation for burglarizing vehicles. Appellant’s trial counsel asked, “If
[appellant] indicates that he got this — these items from Brandon Logan, can you
dispute that?” The State objected on the grounds that the question assumed facts
not in evidence, and the trial court sustained the objection.
Appellant took the stand in his own defense and testified that he had not
stolen the items he pawned, but that he had received the items he pawned from
Logan. He further testified that he had pawned them because Logan did not bring
his identification to the pawn shop, and that Logan paid him $20 for pawning the
items. During direct examination by his trial counsel, appellant admitted that he
had pleaded guilty to several extraneous offenses, but he steadfastly maintained
that though he actually committed those offenses, he did not commit the burglaries
at issue.
Eleven pawn tickets signed by appellant were entered into evidence without
objection from appellant’s trial counsel. Those pawn tickets were not directly
related to the items stolen in this case; during cross-examination, the State asked
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appellant how he had obtained the items listed on the tickets. Appellant claimed
that several of the items he pawned had been given to him by friends and family
members, but he could not remember where he had gotten some items. He did
admit that at least some of the items he had pawned did not belong to him, and he
testified that he had been without a source of income since December 30, 2009.
In its final argument, the State characterized appellant’s longstanding
unemployment as evidence that he had chosen to make a career out of burglarizing
vehicles. The State made several references to appellant as a “career criminal” and
noted that pawning items “was a good source of income for him.” Appellant’s trial
counsel objected to the first “career criminal” reference but remained silent after
the trial court admonished the State to stay within the record. The jury returned a
guilty verdict and a two-year sentence on each count. This appeal followed.
ANALYSIS
In two issues, appellant asserts that his trial counsel was ineffective because
he (1) asked Jernigan about Logan; (2) called appellant to the stand to testify in his
own defense; (3) elicited appellant’s testimony about prior extraneous offenses; (4)
failed to object to the State’s proffer into evidence of eleven pawn tickets; and (5)
failed to object to the State’s descriptions of appellant as a “career criminal.”
An accused is entitled to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687 (1984); King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983). In reviewing claims of ineffective assistance of
counsel, we apply a two-prong test. See Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d). To establish ineffective assistance, an
appellant must prove by a preponderance of the evidence that (1) his trial counsel’s
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representation fell below an objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel’s deficient performance, the result of
the trial would have been different. Strickland, 466 U.S. at 687; Mallett v. State,
65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). If a criminal defendant can prove
that the trial counsel’s performance was deficient, he must still affirmatively prove
that counsel’s actions prejudiced him. Thompson, 9 S.W.3d at 812. To
demonstrate prejudice, a defendant must establish a reasonable probability that the
result of the proceeding would have been different if counsel had acted
professionally. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Mallett, 65 S.W.3d at 63.
When evaluating a claim of ineffective assistance, the appellate court looks
to the totality of the representation and the particular circumstances of each case.
Thompson, 9 S.W.3d at 813. In making such an evaluation, any judicial review
must be highly deferential to trial counsel and avoid the distorting effects of
hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing
Strickland, 466 U.S. at 689). Accordingly, there is a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas v.
State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). The appellant bears the
burden of proving by a preponderance of the evidence that counsel was ineffective.
Thompson, 9 S.W.3d at 813. To overcome the presumption of reasonable
professional assistance, any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. at 814. Direct appeal is usually an inadequate vehicle for
raising such a claim because the record is generally undeveloped. Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). But when no reasonable trial
strategy could justify the trial counsel’s conduct, counsel’s performance falls
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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
acting as he did. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
We will address each of appellant’s allegations of ineffectiveness in turn.
I. Logan’s Involvement
Appellant first claims that his trial counsel was ineffective for introducing
the idea that Logan — not appellant — had committed the underlying burglaries.
By introducing Logan’s name, appellant argues, his trial counsel opened the door
for “damaging rebuttal evidence,” including the eleven pawn tickets appellant
argues should not have been admitted.
A trial attorney who opens the door to damaging evidence is not necessarily
ineffective. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
When a defense attorney does so as part of a legitimate strategic or tactical
decision in the midst of trial, we will not second-guess that decision. Id.
Appellant claims in his brief that his trial counsel based this decision on a mistaken
view of the law, but the record contains no statement from the trial attorney or
other evidence supporting this allegation. Without a firm foundation in the record,
appellant has failed to overcome the presumption that his counsel employed a
sound strategy in introducing Logan as a possible alternative suspect. See id.;
Thompson, 9 S.W.3d at 814.
II. Calling Appellant to the Stand
Appellant next claims that his trial counsel was ineffective for calling him to
the stand to testify in his own defense, in part because it “had the unhappy effect of
subjecting [appellant] to damaging cross-examination.”
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It is a criminal defendant’s constitutional right to testify on his own behalf.
Rock v. Arkansas, 483 U.S. 44, 51-52 (1987); Johnson v. State, 169 S.W.3d 223,
232 (Tex. Crim. App. 2005). Such a right can be knowingly and voluntarily
waived only by the defendant, not his counsel. Smith v. State, 286 S.W.3d 333,
338 n.9 (Tex. Crim. App. 2009). A defendant who rejects his attorney’s advice on
this matter, preempts his attorney’s strategy, and insists that a different strategy be
followed, however, may not complain of ineffective assistance of counsel. Duncan
v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986); Hubbard v. State, 770
S.W.2d 31, 43 (Tex. App.—Dallas 1989, pet. ref’d).
Here, the record is silent as to why appellant testified; we do not know
whether counsel advised or appellant asserted that he should testify. Accordingly,
appellant has failed to rebut the strong presumption that his trial counsel rendered
adequate assistance. See Escobedo v. State, 6 S.W.3d 1, 10-11 (Tex. App.—San
Antonio 1999, pet. ref’d) (declining to find ineffective assistance of counsel where
defendant testified during punishment phase but record did not divulge why
defendant testified or whose decision it was for him to testify); see also Hammond
v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th Dist.] 1997, no pet.)
(holding that counsel cannot be ineffective for failing to advise appellant not to
testify when appellant wishes to testify).
III. Eliciting Admissions of Extraneous Offenses
Appellant also complains that his trial counsel provided ineffective
assistance by questioning him on direct examination about his prior convictions.
Appellant argues that, aside from the prior convictions for burglary of a vehicle —
which were alleged for jurisdictional purposes — these offenses were inadmissible.
As a result, he argues, eliciting testimony regarding these offenses “could serve no
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strategic value including demonstrating that appellant is not a liar.” See Robertson
v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006) (holding trial counsel’s
performance deficient under the first Strickland prong).
This complaint fails because the appellant has not shown prejudice. See
Strickland, 466 U.S. at 694. In his testimony, the appellant admitted to committing
the following crimes:
possession of a controlled substance on June 22, 2009;
burglary of a vehicle on June 28, 2009;
unlawfully carrying a weapon on June 28, 2009;
burglary of a vehicle on December 28, 2009;
burglary of a vehicle on December 28, 2009 (second count);
burglary of a vehicle on December 28, 2009 (third count);
forgery on February 1, 2011; and
fraudulent use or possession of identifying information on February 1,
2011
All of these offenses were included in “State’s Notice of Intent to Introduce
Evidence of Extraneous Offenses and Prior Convictions for Impeachment,
Guilt/Innocence Phase and Punishment,” and the record shows that the appellant’s
forgery conviction was a felony conviction admissible for impeachment purposes.
See Tex. R. Evid. 609(a). Further, the appellant concedes the admissibility of his
four prior convictions for burglary of a vehicle; therefore trial counsel is not
ineffective for introducing those convictions to the jury. We will not condemn a
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“strategic attempt to appear open and honest.” See Martin v. State, 265 S.W.3d
435, 445 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In light of the overwhelming weight of the appellant’s four prior convictions
for burglary of a vehicle and his felony conviction for forgery, we cannot say that
the other extraneous offenses had any effect at all on the outcome of the trial.
Thus, the appellant has failed to show that the result of the proceeding would have
been different if his trial counsel had not mentioned them. See id.; Rodriguez v.
State, 129 S.W.3d 551, 560 (Tex. App.—Houston [1st Dist.] pet. ref’d).
IV. Pawn Tickets
Next, appellant argues that his trial counsel was ineffective for failing to
object to the State’s proffer of the eleven pawn tickets because those tickets were
inadmissible character evidence.
Extraneous offense evidence that is relevant only to show conformity of
character is absolutely inadmissible. Tex. R. Evid. 404(b); Montgomery v. State,
810 S.W.2d 372, 386-87 (Tex. Crim. App. 1990). Evidence of other crimes,
wrongs, or acts may, however, be admissible if it has relevance apart from its
tendency to prove the character of a person in order to show that he acted in
conformity therewith. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387.
Counsel cannot be ineffective for failing to object to admissible evidence. Ex
parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Cadoree v. State, 331
S.W.3d 514, 529 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
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Without deciding whether Rule 404(b) applies to the admission of pawn
tickets,1 we conclude that the pawn tickets were admissible under the doctrine of
chances. The doctrine of chances tells us that highly unusual events are unlikely to
repeat themselves inadvertently or by happenstance. De la Paz v. State, 279
S.W.3d 336, 347 (Tex. Crim. App. 2009). In this case, the doctrine of chances
allows jurors to conclude — without making any inference about appellant’s
general character — that appellant’s innocent explanation about receiving the
stolen items from Logan is objectively unlikely. See id. at 347-48.
A Garmin GPS system and an Apple iPod were among the items appellant
pawned March 18, 2011. He testified that Logan gave him those items. The
challenged pawn tickets showed that appellant had pawned three Garmin GPS
systems and two Apple iPods — as well as many other items — between October
28, 2009 and December 10, 2010. Appellant testified that one of the Garmin GPS
systems had been given to him by a family member, but he could not remember
where he had gotten the other two. Likewise, he could not remember where he had
gotten the two iPods he pawned during that period. All of the items pawned by
appellant were pawned at the same pawn shop, and many of them were pawned
during the period where appellant testified to having no outside income.
According to his testimony, appellant was given more than one Garmin GPS
system to pawn and could not remember where he had gotten two Apple iPods
during a long period of unemployment. These circumstances make the pawn
tickets relevant and admissible under the doctrine of chances. Accordingly,
1
The State argues that Rule 404(b) should not apply: “There is nothing illegal or immoral about
the act of pawning property. Moreover, the act of pawning property, in and of itself, does not show any
particular character trait of a person.”
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appellant’s trial counsel was not ineffective for failing to object to their admission.
See White, 160 S.W.3d at 53; Cadoree, 331 S.W.3d at 529.
V. The State’s “Career Criminal” Argument
Appellant’s final argument on appeal is that his trial counsel was ineffective
for failing to object to the State’s characterization of appellant as a “career
criminal.”
Proper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3)
answer to argument of opposing counsel; and (4) plea for law enforcement. Brown
v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Even where jury argument
is improper, however, an opposing counsel who does not object to such a jury
argument is not necessarily ineffective. See Huerta v. State, 359 S.W.3d 887, 894
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“[E]ven if the scope of
appellant’s cross-examination was subject to a valid objection, appellant has failed
to rebut the presumption that counsel was acting according to sound trial
strategy.”). When the record is devoid of any explanation regarding counsel’s
reasons for not objecting, we will not conclude that counsel’s performance was
constitutionally deficient if any strategic motivations can be imagined for the
decision not to object. Id.
Appellant’s trial counsel might have been concerned that an objection to the
State’s characterization of appellant as a “career criminal” would draw the jury’s
attention to that characterization or that the jurors would give the characterization
more weight because the defense wanted it out. He might also have believed the
trial court would have overruled the objection. All of these could have been part of
a sound trial strategy. See Lopez v. State, 358 S.W.3d 691, 696-97 (Tex. App.—
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San Antonio 2011, pet. ref’d) (deferring to trial counsel’s strategy based on these
three factors). Because a reasonable strategy for counsel’s actions potentially
exists, we conclude that appellant has failed to carry his burden of showing that
counsel was ineffective by not objecting to the challenged jury argument. See
Huerta, 359 S.W.3d at 894-95.
CONCLUSION
We overrule appellant’s two issues and affirm the judgment of the trial
court.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.2
Do Not Publish — Tex. R. App. P. 47.2(b).
2
Senior Justice Margaret Garner Mirabal sitting by assignment.
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