Clinton Aaron Muse, Jr. v. State ( 1991 )

Muse v. State

NO. 10-90-124-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

          CLINTON AARON MUSE, JR.,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

* * * * * * * * * * * * *

From the 54th Judicial District Court

McLennan County, Texas

Trial Court # 90-159-C

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

          Appellant was charged by indictment with the third-degree felony offense of forgery by possession. A jury found him guilty and assessed punishment at one year in a community correctional facility and a $5,000 fine. The Court then entered a judgment of guilty but, contrary to the jury's verdict, assessed punishment at one year in the McLennan County Jail and a $5,000 fine. We will affirm the Court's judgment of guilt, modify the judgment to assess punishment at one year in a community correctional facility and a $5,000 fine, and remand the portion of the cause involving the determination as to which community correctional facility Appellant shall be sentenced.

          Appellant, through his first three points of error, contends that the trial court erred in issuing an unauthorized instruction to the jury that the McLennan County Jail is a community correctional facility.

          According to § 12.34 of the Texas Penal Code, an individual adjudged guilty of a felony of the third degree shall be punished by either confinement in the Institutional Division of the Texas Department of Criminal Justice for any term of not more than ten years or less than two, or confinement in a community correctional facility for a term of not more than a year. A fine not exceeding $10,000 may also be imposed. Tex. Penal Code Ann. § 12.34 (Vernon Supp. 1991) (hereinafter § 12.34). During their deliberations on punishment, the jury, not knowing what constitutes a community correction facility, requested a definition of the term from the trial court. The following excerpt is the judge's response to the jury's question:

COURT: I have a note which reads as follows: What does a community based correctional system consist of, and it's signed Lester Lancaster, Foreperson. The Penal Code does not define what a community based correctional facility is. A community correctional facility. I intend to instruct them that the only community correctional facility in McLennan county would be the McLennan County Jail. I intend to instruct them that the community correctional facility in McLennan County, is the McLennan County Jail, unless you all have any suggestions. What does the community board correctional system consist of, you are instructed that the community correctional facility in McLennan County is the McLennan County Jail. Does the State have any objections?

          [PROSECUTOR]: None from the State, your Honor.

          COURT: Any objections?

          [APPELLANT'S COUNSEL]: None, your Honor.

Here, the jury, having been instructed that the McLennan County Jail is a community correctional facility, returned a verdict assessing Appellant's punishment at confinement in a community correctional facility for a term of one year and a $5,000 fine. The court then sentenced Appellant to one year in the McLennan County Jail and a $5,000 fine. Thus, the issue raised by Appellant's first three points of error is whether the trial court's designation of the McLennan County Jail as a community correctional facility was unauthorized by the Texas Legislature.

          Because the Legislature has failed to define "community correctional facility" statutorily, we must ascertain what they meant by the term through statutory construction. The most common thread running through legal maxims on statutory construction is that the judiciary must choose the construction which best effectuates the intent of the Legislature. See Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989). The intent of the Legislature is generally obtained from the language and legislative history of the statute as a whole. See Newsom v. State, 372 S.W.2d 681, 682-683 (Tex. Crim. App. 1963). If the Legislature did not intend for county jails to be community correctional facilities, then the court's sentence was unauthorized.

          An investigation into the legislative history behind the passage of current § 12.34 reveals an express refusal by the State Legislature to allow county jails to serve as community correctional facilities. Several factors support this conclusion. First, a provision in an approved amendment to § 12.34, which would have included county jails as a possible place of confinement for third-degree felons, was purposefully deleted. General Counsel for the County Judges and Commissioners Association, Jim Allison, commented in a hearing before the Senate Criminal Justice Committee,

 

We do feel that sentence in a county jail for a felony is a significant change in who is responsible for convicted felons... [If third-degree felons] are going to do a year, ... it ought to be in a community corrections facility sponsored and paid for by the state and not in a county jail which is not a proper place for a felony.

That the provision allowing for third-degree felons to be confined in county jails was then deleted evidences that the Legislature did not want third-degree felons to be removed from state authority and placed under the province of county government. Second, Section 3(b) of Article 42.131 of the Texas Code of Criminal Procedure specifically requires the existence of a Community Justice Council or a similar agency as a prerequisite to the creation of a community correctional facility. See Tex. Code Crim. Proc. Ann. art. 42.131, § 3(b) (Vernon Supp. 1991). McLennan County has neither. Third, the Legislature intended community correctional facilities to be a new creation, designed to rehabilitate third-degree felons and integrate them into the society of the local community. See id. at art. 42.13, § 1. The McLennan County Jail has none of the rehabilitative qualities attributable to community correctional facilities. Fourth, McLennan County has never designated a community correctional facility. And fifth, community correctional facilities are to be under the supervision of Community Justice Councils, not the county sheriff. From these factors, the conclusion necessarily follows that the Legislature did not intend for county jails to be considered community correctional facilities. Therefore, the trial court's sentence was unauthorized.

          Rule 80(b) of the Texas Rules of Appellate Procedure states,

The court of appeals may: (1) affirm the judgment of the court below, (2) modify the judgment of the court below by correcting or reforming it, (3) reverse the judgment of the court below and dismiss the case or render the judgment or decree that the court below should have rendered, or (4) reverse the judgment of the court below and remand the case for further proceedings.

Tex. R. App. P. 80(b). Now that the sentence has been shown to have been unauthorized, our task is to rule upon the judgment accordingly.

          Article 42.01 of the Code of Criminal Procedure declares that the defendant should be punished in accordance with the jury's verdict. Tex. Code Crim. Proc. Ann. art. 42.01, § 1(8) (Vernon Supp. 1991). Further, where the trial court's judgment differs from the jury's verdict, the judgment should be reformed to reflect the jury's verdict. Chudleigh v. State, 540 S.W.2d 314, 319 (Tex. Crim. App. 1976). Such is the situation in this case. The jury actually issued the authorized verdict of one year in a community correctional facility and a fine of $5,000, but the trial court then sentenced Appellant to one year in the McLennan County Jail and a fine of $5,000. Therefore, we will reform the judgment of the trial court to conform to the jury's verdict.

          The State, by way of reply, maintains that Appellant waived the error by failing to object to the unauthorized instruction of the court, despite an express request by the judge. Further, the State claims that, because the court's error was not calculated to injure Appellant's rights nor prevented him from receiving a fair and impartial trial, the error was not fundamental and Appellant may not raise the issue on appeal.

          Where a defect of either state or federal constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver. Ex Parte Chambers, 688 S.W.2d 483, 486 (Tex. Crim. App. 1985), cert. denied, 106 S. Ct. 181, 88 L. Ed. 2d 150 (1985) (quoting Cuevas v. State, 641 S.W.2d 558 (Tex. Crim. App. 1982)). Article II, § 1, of the Texas Constitution states:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const. art. II, § 1. The fixing of penalties for crime is a legislative function. Ex Parte Davis, 412 S.W.2d 46, 50 (Tex. Crim. App. 1967). What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is outside of constitutional limitations. Id. On occasion, appellate courts are permitted to reform penalties which were given following an erroneous instruction where a fine was assessed by the jury although the Legislature did not allow for one; however, an instruction that falsely notifies the jury of the defendant's potential place of confinement goes beyond this narrow exception. Tex. Code Crim. Proc. Ann. art. 37.10(b) (Vernon Supp. 1991); See Ex Parte Johnson, 697 S.W.2d 605, 608 (Tex. Crim. App. 1985). The sentence in the instant case infringes upon the exclusive power of the Legislature to affix penalties for the perpetration of a given crime. Therefore, the trial court's error was fundamental, and Appellant's failure to object did not waive the error.

          The issue raised by Appellant's fourth point of error is whether reversible error was committed when the State attempted to impeach Appellant with a prior arrest for burglary. The State contends that Appellant "opened the door" to the questions asked by the prosecutor when he made a blanket denial of not having had any trouble with the law in the past ten years, other than a couple of speeding tickets.

          It is well settled that, when a defendant chooses to waive his privilege against self-incrimination by voluntarily taking the witness stand, he is generally subject to the same rules as any other witness. Bell v. State, 620 S.W.2d 116, 124 (Tex. Crim. App. 1981). The prosecutor may question the defendant about prior arrests so long as the arrests resulted in final convictions or the crime was one of moral turpitude. Tex. R. Crim. Evid. 609(a). An exception exists, however, when the witness, by his direct testimony, leaves a false impression of the trouble he has had with the police. Nelson v. State, 503 S.W.2d 543, 545 (Tex. Crim. App. 1974). Provided the State pursues the matter of prior arrests in good faith and does not attempt to impeach the defendant once he has denied having been arrested for the questioned crime, the defendant is considered to have opened the door to the questions. Id.

          Here, defense counsel asked Appellant if he had been in any trouble with the law since a conviction for aggravated assault in 1978, to which he responded that aside from a couple speeding tickets he had not. This blanket statement was sufficient to leave in the minds of the jurors a false idea of Appellant's conduct as being exemplary. By asking his client if he had been in any trouble since 1978, Appellant's counsel conveyed to the jurors the idea that Appellant had never been in any trouble, even though he had been arrested for burglary in 1976 and convicted for possession of marijuana in 1982. Therefore, the State was justified in asking Appellant about his arrest for burglary to remove the false impression of Appellant's exemplary conduct.

          Appellant further maintains that the State attempted to impeach him once he had denied the arrest for burglary by asking him again if he had ever been arrested of the crime. Although the State did ask Appellant twice if he had been arrested for burglary, his counsel objected immediately after the second occurrence. The objection was sustained and the matter was not pursued any further by the State. The fourth point of error is overruled.

          We affirm the trial court's judgment of guilt, modify the judgment to assess punishment at one year in a community correctional facility and a $5,000 fine, and remand the portion of the cause involving the determination as to which community correctional facility Appellant shall be sentenced.

 

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas, Justice Cummings

           and Justice Vance

Affirmed in part, modified in part, reversed and remanded in part

Opinion delivered and filed August 1, 1991

Publish

e Constitutional “elements essential to constitute a ‘trial by jury’” include “a unanimous verdict.”  Randel v. State, 153 Tex. Crim. 282, 296, 219 S.W.2d 689, 698 (1949) (op. on reh’g); see Ngo, 175 S.W.3d at 745; see also Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon 2006).  When the State “put[s] on evidence of the repetition of the same criminal act on different occasions,” “the jury must reach a unanimous verdict on which single, specific criminal act the defendant committed.”  Ngo, 175 S.W.3d at 747, 748.

      On appeal, McCormick proposes the instruction:

You have been instructed that your verdict, whether it is guilty or not guilty, must be unanimous.  The following instruction applies to the unanimity requirement as to Count I.

Count I of the indictment accuses the defendant of committing the crime of Indecency with a Child by touching the breast of E[.] R[.]  In order to return a guilty verdict, all twelve of you must agree as to the same specific act, if any, that constitutes the conduct alleged in Count I.

(Br. at 23 (citing Fifth Circuit District Judges Association Pattern Jury Instructions (Criminal Cases) § 1.25 (2001)).)  The State argues, “Appellant is really complaining because several incidents could have supported the indictment, but an election was not requested.”  (Br. at 18 (citing O’Neal v. State, 746 S.W.2d 769, 771-72 (Tex. Crim. App. 1988)).) The Court of Criminal Appeals has rejected an argument similar to the State’s:

The State posits that jury unanimity is required only if the defendant requests an election between separate offenses.  A request for an election, however, is not a prerequisite for implementing Texas’ constitutional and statutory requirement of jury unanimity.  An election simply limits the number of specific offenses that the jury may consider during its deliberations.  . . . .  The failure to request an election does not eliminate a defendant’s right to a unanimous verdict.

Ngo, 175 S.W.3d at 738 (internal footnote omitted). The State acknowledges, “Allowing a jury to choose from several separate acts, each of which is a violation of a specific statute, without requiring the jury to agree on which act was committed violates the unanimity requirement.”  (Br. at 18 (citing Ngo, 175 S.W.3d at 747-48).)  Without deciding that the trial court erred by not submitting the specific instruction requested, we hold that the trial court erred in failing to require unanimity on the specific instance of indecency of which the jury found McCormick guilty.^[3]

      As to harm, McCormick argues only, “Recently, the Court of Criminal Appeals, in Ngo . . . determined that appellant therein (who had not objected to the jury charge) had suffered egregious harm when the trial court disjunctively submitted the State’s theories of conviction in one general verdict form without a unanimity instruction.”  (Br. at 23 (citing Ngo, No. 0504-04, Loislaw at *8-*10 (Tex. Crim. App. Mar. 16, 2005)).)  McCormick’s case is distinguishable from Ngo.  In Ngo, “1) the jury charge permitted a non-unanimous verdict” on a disjunctive charge; “2) during its closing argument, the State forthrightly told the jury that it need not be unanimous in its verdict”; “3) ‘there were contested issues at trial’”; and 4) “both the trial judge and the prosecution misstated the law” in voir dire.  Ngo, 175 S.W.3d at 750-51 (quoting Ngo v. State, 129 S.W.3d 198, 201-202 (Tex. App.—Eastland 2004), aff’d, Ngo, 175 S.W.3d 738).  McCormick does not point to, and we do not find, anything comparable here.  The State does not argue harm.

      The evidence that McCormick committed indecency with E. R. in the manner and on or about the date alleged in the indictment was not distinct.  By the same token, the evidence that McCormick did so on any other date was likewise weak.  The Texas Court of Criminal Appeals has analyzed the harm from the possibility of a non-unanimous verdict, in the context of the erroneous denial of a request for an election of the offenses on which the State intended to rely for conviction, in Dixon v. Texas.  Dixon v. State, 201 S.W.3d 731, 735 (Tex. Crim. App. 2006).  Dixon concerned a prosecution for aggravated sexual assault of a child.  Id. at 731; see Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5, 2001 Tex. Gen. Laws 893, 898-99 (amended 2003) (current version at Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2006)).  There, at trial, the child victim “related a sequence of events that occurred every time appellant sexually assaulted her.  . . . .  According to the victim, this sequence of events occurred one hundred times.  Except for one time during the day, this activity always occurred at night.  The child . . . gave no further details regarding this activity.”  Dixon at 732.  The Court of Criminal Appeals held that the verdict based on the victim’s undifferentiated testimony did not violate the unanimity requirement:

      We . . . perceive no risk that the present case led to a non-unanimous verdict.  The only distinguishing detail among the one hundred offenses is that one occurred during the day, while all the others happened at night.  . . . .  [T]here is simply no basis in the record for the jury to believe that one incident occurred during the day but that none occurred at night.  The nighttime scenario being typical (ninety-nine out of one hundred), it is obvious from this record that anyone who believed the complainant’s allegations in any respect would believe that sexual assaults occurred at night.

Dixon, 201 S.W.3d at 735.

[I]t is meaningless to say the jurors . . . could have disagreed about which incident was the basis for conviction.  The offenses were described as identical and any one of them could have occurred on any given day during the time period appellant stayed with the victim’s family.  Aside from the day/night distinction . . . , what precisely would the jurors be disagreeing about?  Clearly, however, the jurors unanimously agreed that appellant committed at least one sexual assault, at night, sometime during the year, in the manner described by the complainant.

Id. n.23.Â

      E. R.’s testimony was likewise undistinguished.  She testified as follows concerning McCormick on direct examination:

      Q.   . . . . [D]id anything in terms of sexual contact ever escalate?

      A.   Yes, ma’am.

      Q.   Okay.  And how—how did that escalate?

      A.   Um, he started making me sit on his lap.  He’d grab me by the hips and make me sit on his lap.

      Q.   Okay.

      A.   . . . .

            He would take his hand and he would rub my breasts and he’d laugh like it was funny or something.

(3 R.R. at 26.)

      Q.   . . . . Did you go over and sit down on his lap, you know, by yourself?

      A.   Usually, no.

      Q.   Okay.

      A.   Usually, I’d be, like, asking him a question or whatever, and he would sit me down.

      Q.   Okay.  What do you mean by that?  Like, how would he sit you down?

      A.   He would grab my [sic] by the hips and have me sit on his lap, my back to—to him.

      Q.   Okay.  And what happened when that would occur, when he’d put you on his lap?

      A.   Like I said, sometimes he would take his hand, he would rub my breasts, um—

      Q.   Was that on the outside of your clothing or underneath your clothing?

      A.   At first, yes, ma’am.  At first, it was on the outside of my clothing.  Eventually, he would reach up my shirt.

      Q.   Okay.  And you said that he would touch you on the outside of your clothing.  Where on the outside of your clothing was he touching you?

      A.   My breast.  My nipple area.

      Q.   Okay.  What would he do whenever he would touch your breast?

      A.   He would just take his finger and rub it.  If it poked out, he’d laugh like it was funny.

(3 R.R. at 26-27.)

      Q.   You said that, um—that sometimes when he’d put you on his lap that he would touch you on the outside of your clothing and that eventually changed.  Do you recall any times when he would touch you underneath your clothing?

      A.   Um, just on my breast. Um, I’d be sitting on his lap and he’d make me sit down and he’d reach up my shirt.

      Q.   Okay.  What would he do then?

      A.   Same thing.  But this time underneath my clothes.  He would rub my nipple and see if it could get hard and laugh.  Sometimes he’d kiss me.

      . . . .

      Q.   What was he wearing whenever he would pull you onto his lap on—on some of these occasions?

      A.   Sweatpants or shorts.

      Q.   Did you ever notice anything after you would get up off of his lap?

      A.   Um, his shorts would have a wet spot on them.

      Q.   Okay.  Did you notice anything or feel anything sometimes when you—

      A.   You could feel—

      Q.   —would sit on his lap?

      A.   —sometimes you could feel his penis get hard and it would move.

(3 R.R. at 28-29.)

      In one of E. R.’s letters to her mother, she stated of McCormick:

“He’d have me sit on his lap and sometimes he’d kiss me on my lips.  When I’d get up, his shorts would be all wet with a spot on them.

“When I’d be sitting on his lap I could feel when sometimes his penis moved.  . . . .

“After a while he started to touch me on my breasts.  He would take his finger and rub over my nipple to see if it would get hard.  Sometimes he could kiss it really quick and then laugh.  It poked out after he rubbed it.  . . . .”

(3 R.R. at 76-77; see State’s Ex. 4.)

      The evidence provides little meaningful basis for distinguishing McCormick’s acts of indecency by sexual contact: whether McCormick laughed, whether he touched E. R. on the inside or outside of her clothing, whether he kissed her, or whether he got an erection.  By the reasoning of Dixon, however, the evidence here creates little risk of a non-unanimous verdict.  See Dixon, 201 S.W.3d at 735.  McCormick did not suffer egregious harm from the omission of a unanimity instruction.  We overrule McCormick’s second issue.

      Comment on Weight of Evidence.  In McCormick’s third issue, he contends that the trial court commented on the weight of the evidence and thus erred.  See Tex. Code Crim. Proc. Ann. art. 36.14. “In Texas, a trial judge must . . . refrain from making any remark calculated to convey to the jury his opinion of the case.”  Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003); accord Stayton v. State, 32 Tex. Crim. 33, 35, 22 S.W. 38, 38 (1893). 

      McCormick complains of the following italicized language in the instruction to the effect that the jury should find him guilty if the jury found that McCormick “engage[d] in sexual contact with E[.] R[.] by touching the breast of E[.] R[.], a child younger than seventeen years of age and not the spouse of” McCormick.  (Br. at 26 (quoting I C.R. at 31) (emphasis added by McCormick).)  McCormick argues that the trial court should have instructed the jury: “engage[d] in sexual contact with E[.] R[.] by touching the breast of E[.] R[.], and that E[.] R[.] was then under the age of seventeen years and not the spouse of” McCormick.  (Br. at 26 (citing Paul J. McClung, Jury Charges for the Texas Criminal [sic] 98-99 (1995)) (emphasis added by McCormick).)  We assume without deciding that the trial court erred.

      McCormick does not argue harm.  As to harm, the State points to the uncontroverted evidence that E. R. was a child at the time of McCormick’s sexual contact with her breast and that E. R. was not McCormick’s spouse, and to the State’s jury argument that the jury must so find in order to find McCormick guilty of indecency by sexual contact.  McCormick did not suffer egregious harm.  We overrule McCormick’s third issue.

      Ex Post Facto Application. In McCormick’s fourth issue, he contends that the trial court instructed the jury on law not in effect at the time of McCormick’s offense, and thus erred. 

      McCormick complains of the trial court’s definition of “sexual contact”:

      By the term “sexual contact,” as used herein, is meant any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, with intent to arouse or gratify the sexual desire of any person; or, any touching of any part of the body of a child including touching through clothing, with the anus, breast, or any part of the genitals of a person with the intent to arouse or gratify the sexual desire of any person.

(C.R. at 29.)  In particular, McCormick complains of the language “touching through clothing.”  McCormick argues that the trial court’s definition comports with the current statutory definition of “sexual contact,” but not with that in effect at the time of the offenses alleged in the indictment.  Under the current statute, “sexual contact,” for purposes of Section 21.11:

means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

      (1)  any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

      (2)  any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Penal Code Ann. § 21.11(c) (Vernon 2003).  The definition was amended effective September 1, 2001, for offenses committed on or after that date.  See Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, sec. (c), 2001 Tex. Gen. Laws 1463, 1463 (current version at Tex. Penal Code Ann. § 21.11(c)); id. §§ 3-4, 2001 Tex. Gen. Laws at 1463-64.

      At the time of McCormick’s offense, the statutory definition of “sexual contact” for purposes of Penal Code Chapter 21 was:

      “Sexual contact” means the touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.01(2), 1993 Tex. Gen. Laws at 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 1, 2001 Tex. Gen. Laws 1463, 1463.

      The case law, however, was clear at the time of McCormick’s offense that the definition of “sexual contact” included touching through clothing.  The Court of Criminal Appeals “clearly dismisse[d] the notion that ‘a touching’ requires proof of flesh-to-flesh contact” in 1978.  Deason v. State, 786 S.W.2d 711, 716 (Tex. Crim. App. 1990), disavowed on other grounds, Gipson v. State, 844 S.W.2d 738, 740 (Tex. Crim. App. 1992) (Deason citing Resnick v. State, 574 S.W.2d 558, 559-60 (Tex. Crim. App. [Panel Op.] 1978)).  Under any other holding, “a defendant who thrust his hand beneath a victim’s undergarments and fondled his or her genitals in a public place could not be prosecuted for public lewdness if he were wearing a glove.”  Resnick, 574 S.W.2d at 560.

      The trial court did not instruct the jury on law not in effect at the time of the charged offenses, and so did not err.  We overrule McCormick’s fourth issue.

      Effective Assistance of Counsel.  In McCormick’s fifth issue, he contends that his trial counsel failed to render the effective assistance of counsel.  “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”  U.S. Const. amend. VI; see Rompilla v. Beard, 545 U.S. 374, 380 (2005); Strickland v. Washington, 466 U.S. 668 (1984).  “Ineffective assistance under Strickland [v. Washington] is deficient performance by counsel resulting in prejudice, with performance being measured against an ‘objective standard of reasonableness,’ ‘under prevailing professional norms.’”  Rompilla at 380 (quoting Strickland at 687, 688).   “In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.”  Strickland at 696.  “Without proof of both deficient performance and prejudice to the defense, . . . it c[an]not be said that the sentence or conviction ‘resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable’ . . . .”  Bell v. Cone, 535 U.S. 685, 695 (2002) (quoting Strickland at 687).  “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”  Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.—Waco 2000, pet. ref’d) (internal citation omitted).

      “[C]ounsel is ‘strongly presumed’ to make decisions in the exercise of professional judgment.”  Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland, 466 U.S. at 690).

When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.  That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court “may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.”

Gentry at 5-6 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)) (internal citation omitted) (argument).  “A Strickland claim must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of the claim.”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)); accord Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  “In the absence of anything in the record affirmatively demonstrating otherwise, we presume that . . . counsel made a reasonable and strategic decision . . . .”  Salinas at 740.

Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.  This is true with regard to the question of deficient performance—in which counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight—where counsel’s reasons for failing to do something do not appear in the record.

Goodspeed at 392 (internal footnotes omitted); see Wiggins v. Smith, 539 U.S. 510, 523 (2003); Strickland, 466 U.S. at 689; Thompson at 814.  “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.”  Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)); accord Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  “Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’”  Goodspeed at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

      McCormick first complains of counsel’s “failing to request a limiting instruction regarding extraneous offenses in the jury charge at the conclusion of the guilt-innocence phase.”  (Br. at 31 (capitalization altered).)  McCormick does not point to the reasons for counsel’s conduct in the record.^[4]  Moreover, the decision not to request a limiting instruction can constitute reasonable trial strategy.  See Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994); Ali v. State, 26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.).   

      As to McCormick’s other allegations of ineffective assistance, he does not point to the reasons for counsel’s conduct in the record, and does not argue that he was prejudiced by counsel’s conduct. 

      McCormick does not establish that he did not have the effective assistance of counsel.  We overrule McCormick’s fifth issue.

      CONCLUSION. Having overruled McCormick’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed January 10, 2007

Do not publish

[CR25]

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[1]  The jury found McCormick not guilty in Count 2, which alleged indecency with a child by exposure.  See Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.11(a)(2), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at Tex. Penal Code Ann. § 21.11(a)(2)(A) (Vernon 2003)).

[2]  The State also urges us to reconsider our holding in Rodgers. See 180 S.W.3d 716.  We decline to do so.  See Ex parte Townsend, 137 S.W.3d 79, 82 (Tex. Crim. App. 2004); Awadelkariem v. State, 974 S.W.2d 721, 724-26 (Tex. Crim. App. 1998) (stare decisis).

[3]  The trial court instructed the jury, “If you agree upon a verdict, it must be by unanimous vote.”  (C.R. at 34.)  The State does not contend that, that instruction was sufficient.

[4]    McCormick points to counsel’s stated reason for not objecting to hearsay evidence, in response to the trial court’s comment that not objecting constituted “trial strategy”:

It is judge.  And if it please the Court, you’ll notice that today the things that were brought up, I specifically asked [a witness] about those.  And because I knew it was going to come up, because I wanted to . . . ask those questions of [the witness].

(Br. at 37 (quoting 4 R.R. at 124, 125) (bracketed alterations added); see McCormick Br. at 36-37.)