Williams, Barry Wayne v. State ( 2006 )

Affirmed and Memorandum Opinion filed March 2, 2006

Affirmed and Memorandum Opinion filed March 2, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01138-CR

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BARRY WAYNE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 991,406

M E M O R A N D U M   O P I N I O N

Appellant Barry Wayne Williams was convicted of delivery of a controlled substance and sentenced to 600 days= imprisonment.  In one issue, appellant complains that he received ineffective assistance of counsel. We affirm.

On June 17, 2004, appellant was arrested after he sold .17 grams of crack cocaine to J.D. Cargill, an undercover officer with the Houston Police Department.  Cargill was working on assignment at a Houston gas station while three other officers observed from a short distance.  Cargill was standing by a pay phone at the gas station when appellant, a homeless man, approached him and asked for spare change.  Cargill replied that he needed his spare change to buy crack. Appellant agreed to find crack for Cargill in exchange for a ten dollar fee.  He then got in Cargill=s truck and directed Cargill to drive to a nearby park.  At the park, appellant walked into an adjacent neighborhood with twenty dollars Cargill had given him to buy the crack. He returned about five minutes later and directed Cargill back to the gas station, where appellant removed some crack from his mouth and gave it to Cargill for the agreed ten dollars. After this exchange, appellant went inside the store.  Cargill drove away and notified one of the surveillance officers that the transaction was complete.  A uniformed officer then arrested appellant, who had since gone to where he was living under a nearby bridge.  The police did not find money or drugs on appellant when he was arrested.

At trial, Cargill and one of the surveillance officers testified about the events leading to appellant=s arrest. Appellant testified to a different version of events, claiming he was unable to buy crack for Cargill.^[1]  During appellant=s direct examination, appellant=s attorney asked him about the following four prior convictions, presumably in anticipation of cross- examination: (1) possession of cocaine in 2002, (2) burglary of a habitation in 2000, (3) theft in 1994, and (4) burglary of a building in 1994.  After the State cross-examined appellant, appellant=s attorney asked him on re-direct about a 1999 domestic assault that neither his attorney nor the State had previously raised.  The State, on re-cross, questioned appellant about the 1999 assault for Abeating on [his] wife.@  Appellant said he had not beaten his wife and that she had Aput in a statement saying that it didn=t happen.  That she was . . . going through a lot of stuff and she got angry with me.@  Appellant also said he thought the charges had been dropped.  The prosecutor approached appellant with a document she did not admit into evidence^[2] and questioned him about its contents. The prosecutor noted that the document said appellant Adid 208 days@ for assault, and appellant reluctantly agreed that he Aguess[ed]@ it meant he was convicted of assault.  The jury subsequently convicted appellant, and this appeal followed.

In his sole issue, appellant contends he received ineffective assistance of counsel because his attorney elicited testimony from him about the 1999 assault after the prosecutor failed to raise it during cross-examination.  Ineffective assistance claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984).  To prove ineffective assistance, appellant must show (1) that trial counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Id. at 687B92; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance.  Salinas, 163 S.W.3d at 740.  To defeat this presumption, A>any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.=@  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). Without specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813B14 (noting that when the record contains no explanation for counsel=s decisions, an appellate court should be cautious in deciding whether the Amotivation behind counsel=s actions@ was Aof strategic design or the result of negligent conduct@).

 Under Evidence Rule 609, evidence of a prior conviction is admissible to attack a witness=s credibility when the prior offense was a felony or a crime of moral turpitude.  See Tex. R. Evid. 609(a).  The State correctly points out that assault of a woman by a man is considered a crime of moral turpitude.  See Ludwig v. State, 969 S.W.2d 22, 28, 30 (Tex. App.BForth Worth 1998, pet. ref=d); Hardeman v. State, 868 S.W.2d 404, 407 (Tex. App.BAustin 1993), pet. dism=d, improvidently granted, 891 S.W.2d 960 (Tex. Crim. App. 1995).  It is unclear from the record whether the 1999 assault resulted in a conviction. Thus, it may have been inadmissible. We agree with appellant that eliciting testimony on an otherwise inadmissible conviction is deficient performance under Strickland.  See Stone v. State, 17 S.W.3d 348, 353 (Tex. App.BCorpus Christi 2000, pet. ref=d).  However, because appellant has not brought forward a record establishing whether he was convicted of the 1999 assault, we cannot determine if his counsel opened the door to inadmissible evidence. Appellant also argues that even if admissible, there could have been no conceivable trial strategy for questioning him about the conviction after the prosecutor had finished her cross-examination. Without reasons for counsel=s decisions in the record, appellant fails to overcome the strong presumption that counsel=s actions were reasonable.  See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (noting that Atrial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective@).^[3]   Thus, based on the record before us, appellant has not satisfied the first Strickland prong by showing that counsel=s performance was deficient.  See Strickland, 466 U.S. at 687.

Moreover, even if we agreed with appellant=s argument that this is one if those rare cases in which ineffective assistance can be found on a record silent as to counsel=s strategy, see Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003), appellant has failed to show that the alleged deficiency sufficiently prejudiced his defense.  See Strickland, 466 U.S. at 687.  Appellant argues that the 1999 assault prejudiced him in the eyes of the jury and damaged his credibility.  He cites Stone v. State, a factually similar case involving undercover officers who orchestrated the sale of crack cocaine from the defendant. See Stone, 17 S.W.3d at 351. In Stone, when the defendant took the stand and testified to an alibi defense, his attorney questioned him about a nearly eighteen-year-old murder conviction.  Id.  The court found the second Strickland prong was met because the murder conviction (1) diminished the defendant=s credibility, which was critical in that case, and (2) substantiated trial evidence that the defendant allegedly threatened to kill the undercover officers if the crack sale got him in trouble with the law.  Id. at 351, 353.  However, we find this case distinguishable from Stone. Although here appellant=s credibility was also critical, the extraneous offense was not as significant a determinant in the trial=s outcome as in Stone because appellant=s credibility had already been damaged by his four prior convictions.  Further, the extraneous offense did not substantiate any of the State=s evidence-in-chief as it had in Stone. Considering the circumstances of this case, including the strength of the State=s evidence against appellant and his four prior convictions, we find there is no reasonable probability that introducing the 1999 assault could have affected the outcome of the proceeding.  Accordingly, we overrule appellant=s sole issue.

We affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 2, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  According to appellant, Cargill approached appellant where he was sitting under a bridge and beckoned to him.  Cargill asked if appellant wanted to get high and if he knew a dealer named ALittle J,@ and appellant responded affirmatively to both questions.  Cargill drove appellant to a park and sent him with twenty dollars to buy some crack from Little J, who was present at the park, but Little J refused because he said appellant was working with police.  Thereafter, Cargill and appellant returned to the gas station, where appellant returned Cargill=s money. Appellant claims Cargill gave him three dollars and a small piece of crack Afor [his] trouble.@  Appellant went in the store and bought some beer with the money Cargill had given him and then returned to the bridge, where he was arrested.

^[2]  The prosecutor did not identify the document she used to question appellant.  When she asked appellant to identify it, appellant replied, AIt=s from a court@ and admitted that it bore his name.  The prosecutor asked, AIs it for assault?@ and noted that Ait shows you did 208 days.@  Appellant reluctantly conceded these points.  From this context, and without having the document in evidence, it is unclear whether it was a judgment of conviction or another type of record. 

^[3]   The record shows appellant did not file a motion for new trial.  Without a motion for new trial, affidavits from trial counsel explaining his actions, or other affirmative evidence in the record showing whether appellant was convicted of the 1999 assault, we cannot determine, without engaging in speculation, whether counsel=s actions constituted deficient performance so outrageous that no competent attorney would have engaged in it.  See Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, ___ S.W.3d ___ , at *2 (Tex. Crim. App. Apr. 6, 2005); Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).