Gary Dale Phelps v. State ( 2011 )

NO. 07-10-00443-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 29, 2011
GARY DALE PHELPS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 62,053-D; HONORABLE DOUG WOODBURN, JUDGE
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1
MEMORANDUM OPINION
Appellant, Gary Dale Phelps, appeals his conviction for the offense of aggravated
assault with a deadly weapon2 and subsequent sentence of confinement in the
Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) of four
years and a fine of $500. Appellant contends that he was denied effective assistance of
counsel and that the trial court committed reversible error in failing to admonish him
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
regarding his rights against self-incrimination under the 5th Amendment to the United
States Constitution prior to his testimony at trial. We affirm.
Factual and Procedural Background3
On November 12, 2009, Monte Phillips observed a blue Ford pick-up dumping
what appeared to be construction debris on a private road in Potter County. Phillips
realized that the trash was being dumped on the road that belonged to his neighbor,
Jamie Macrander, so he phoned Macrander and advised what was occurring. After
Phillips phoned Macrander, Phillips went outside and started approaching the pick-up
while trying to get the attention of the male who was dumping the trash. At the same
time, Macrander came out of his house and started toward the road.
After being alerted that his dumping activities had been observed, the male got
back in the truck and turned around to leave. Phillips was able to obtain the license
plate number of the truck as it left the scene. At the same time, Macrander went into
the road and tried to stop the vehicle from leaving. While standing in the road holding
his hand up in an effort to advise the driver to stop, Macrander realized that the truck
was not slowing down and was headed directly at him. Macrander was able to avoid
being hit by the truck by jumping to the side of the road. He also copied the license
plate number down and called 911 to report the incident.
Potter County deputies were sent to the scene and, later that night, located a
blue Ford pick-up truck with the reported license plate number at a residence in
3
Appellant does not challenge the sufficiency of the evidence to support his
conviction and sentence, therefore, only those portions of the record relevant to his
issues will be recited.
2
Amarillo. The deputies who located the truck talked to the two people at the residence
about the trash dumping incident. Appellant was one of the two people at the house
and advised the deputies that he had been working removing trash from a construction
site in Amarillo that day but that he did not dump any trash at the scene. Appellant did
advise the deputies that he had hired two day laborers who were driving his truck and
that, if they had in fact dumped trash illegally, he would be willing to go clean up the
site.
After visiting with appellant, the deputies took pictures of appellant and the other
person at the house and went back to the Macrander residence to show the pictures to
Phillips and Macrander. Both Phillips and Macrander identified appellant as the male
who was dumping the trash and driving the truck when it nearly ran over Macrander.
Appellant was subsequently indicted for aggravated assault with a deadly
weapon. During the trial, appellant testified in his own defense. Prior to getting into the
facts of the case, appellant’s trial counsel elicited a response from appellant affirming
that he had in fact been convicted of a prior felony. The defense presented an alibi
defense tending to show that the Ford pick-up involved in the incident was being driven
by the two day laborers that appellant had hired. At the conclusion of the testimony and
after having prepared a proposed charge, the trial court inquired as to whether the State
or appellant had any objections. Neither State nor appellant requested the submission
of any lesser-included charges. The jury then returned a verdict of guilty against
appellant.
3
Appellant had elected to go to the trial court for punishment. During his
testimony on punishment, his counsel first attempted to ask questions regarding
whether appellant was familiar with and could abide by the terms and conditions of
probation. At that point, the State pointed out that, under the laws of the State of Texas,
appellant could not receive probation from the trial court for the offense for which he
was convicted.4 The trial court subsequently sentenced appellant to a term of
confinement in the ID-TDCJ of four years and assessed a fine of $500. This appeal
followed appellant’s conviction.
Appellant brings forth two issues. First, he alleges that trial counsel provided
ineffective assistance in four particulars: 1) the failure of trial counsel to understand the
law regarding punishment; 2) the failure of trial counsel to request a charge on a lesser-
included offense; 3) trial counsel’s introduction of evidence of appellant’s prior
conviction; and 4) the failure of trial counsel to object when the State introduced the
same prejudicial evidence of the prior conviction during the guilt innocence phase of the
trial. Second, appellant contends that the trial court committed reversible error by not
admonishing appellant regarding his right against self-incrimination prior to appellant’s
testifying during the guilt innocence phase of the trial. We disagree with appellant’s
contentions and will affirm.
4
See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(2) (West Supp. 2010).
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Ineffective Assistance of Counsel
Standard of Review
In determining whether counsel’s representation was so inadequate as to violate
a defendant’s Sixth Amendment right to counsel, Texas courts apply the two-pronged
test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986).
Judicial review of an ineffective assistance of counsel claim must be highly deferential,
and there is a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance. Strickland, 466 U.S. at 689. An appellant bears
the burden of proving by a preponderance of the evidence that (1) counsel’s
representation fell below an objective standard of reasonableness and (2) the deficient
performance prejudiced the appellant. Freeman v. State, 125 S.W.3d 505, 511
(Tex.Crim.App. 2003). Failure to make the required showing of either deficient
performance or sufficient prejudice is fatal to an ineffectiveness claim. See id.
Reviewing courts “commonly assume a strategic motive if any can be imagined” and will
conclude that counsel’s performance was “deficient only if the conduct was so
outrageous that no competent attorney would have engaged in it.” Andrews v. State,
159 S.W.3d 98, 101 (Tex.Crim.App. 2005).
Analysis
Appellant contends that there are four separate events of ineffective assistance
of counsel. We will address each as they allegedly occurred during the trial.
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Prior Felony Conviction
We first address appellant’s allegation of ineffective assistance during the guilt
innocence phase of the trial. Both of these allegations concern appellant’s conviction
for a prior felony offense. When appellant was called as a witness, the first area of
inquiry made by trial counsel concerned the fact that appellant had been convicted of a
prior felony offense. According to appellant, this inquiry into his prior conviction was an
act of ineffective assistance. Appellant also contends that, when the State questioned
him about it during cross-examination, his trial counsel was ineffective because he
failed to object to this inquiry.
Our initial inquiry addresses the question of whether the introduction of this
testimony fell below an objective standard of reasonableness. See Freeman, 125
S.W.3d at 511. Trial counsel can, as a strategic decision, decide to blunt the effect of a
prior conviction by discussing the matter with his client on direct examination. See
Martin v. State, 265 S.W.3d 435, 443 (Tex.App.—Houston [1st Dist.] 2007, no pet).
However, this decision is only viable if the prior convictions are otherwise admissible.
See Robertson v. State, 187 S.W.3d 475, 484-85 (Tex.Crim.App. 2006). The question
of admissibility is decided under the guidance of the Texas Rules of Evidence and
cases interpreting the rules of evidence. See TEX. R. EVID. 609;5 Theus v. State, 845
S.W.2d 874, 880 (Tex.Crim.App. 1992).
5
Further reference to the Texas Rules of Evidence shall be by reference to “Rule
___” or “rule ___.”
6
Rule 609 provides in pertinent part:
General Rule. For the purposes of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall be admitted
if elicited from the witness or established by public record but only if the
crime was a felony or involved moral turpitude, regardless of punishment,
and the court determines that the probative value admitting this evidence
outweighs its prejudicial effect to a party.
The Theus case provides guidance in determining when such evidence is admissible.
See Theus, 845 S.W.2d at 880. Under this analysis, we examine five factors in
determining the probative value of the prior conviction as opposed to its prejudicial
effect: 1) the impeachment value of the prior conviction; 2) the temporal proximity of the
prior conviction; 3) the similarity between the past conviction and the offense being
prosecuted; 4) the importance of the appellant’s testimony; and 5) the importance of the
credibility issue. Id.
The prior offense was a felony and, as such, met the first requirement of Rule
609. The prior offense was a forgery which has been held to be a crime of deception
and, therefore, of relative high impeachment value. See Denman v. State, 193 S.W.3d
129, 136 (Tex.App—Houston [1st Dist.] 2006, pet. ref’d). At the time the prior offense
evidence was presented, the time span between the forgery and the trial was
approximately five years. This span has been previously held to be temporally
proximate for purposes of this analysis. See Theus, 845 S.W.2d at 881. The previous
conviction and the current case are not similar, and, under the Theus analysis, this
dissimilarity is consistent with admissibility. Id. at 880-81. The only Theus factor that
seems to militate against admissibility is the fact that appellant’s defense did not rely
only on his testimony. Id. In fact, appellant had a number of additional witnesses that
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testified as to his alibi. However, in light of the two eyewitnesses that identified
appellant at the scene, the credibility of appellant’s testimony was critical. This element
would suggest that the prior offense should be admitted under the Theus analysis.
Therefore, we are left with the conclusion that the evidence of appellant’s prior
conviction was admissible in the trial of the case. Accordingly, the strategic decision of
trial counsel to blunt the impact of this evidence by introducing it on direct examination
was a valid trial decision of counsel. See Robertson, 187 S.W.3d at 485. Therefore,
trial counsel’s action in this regard did not fall below an objective standard of
reasonableness. See Freeman, 125 S.W.3d at 511.
The same reasoning applies to appellant’s additional complaint about the failure
of trial counsel to object when the State on cross-examination proved up the prior
conviction by introduction of State’s exhibit 22. The failure of trial counsel to object to
admissible evidence is not ineffective assistance of counsel. See McFarland v. State,
845 S.W.2d 824, 846 (Tex.Crim.App. 1992) (en banc), overruled on other grounds,
Bingham v. State, 915 S.W.2d 9, (Tex.Crim.App. 1994). As mentioned in the preceding
paragraph, trial counsel’s action in not objecting to the introduction of the exhibit during
cross-examination did not fall below an objective standard of reasonableness. See Id.
Failure to Request Lesser-Included Charge
Appellant next contends that trial counsel was ineffective when he did not
request the inclusion in the Court’s Charge to the jury a lesser-included charge.
Appellant cites the Court to a number of cases that indicate that there are at least two
lesser-included offenses to the offense for which appellant was being tried. The fact
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that there are lesser-included charges possible does not ipso facto dictate that a failure
to request one is an act of an ineffective counsel.
It is instructive that appellant and his trial counsel discussed their collective
decision not to seek a lesser-included charge while appellant was testifying during
punishment. When asked if they decided to go all or nothing by not requesting a lesser-
included charge, appellant answered in the affirmative. A decision not to request the
lesser-included charge when made as part of trial strategy has been held not to be an
act of ineffective assistance of counsel. See Fife v. State, No. 07-02-00410-CR, 2004
Tex. App. LEXIS 4994, at *13-14 (Tex.App.—Amarillo 2004, no pet.) (not designated for
publication) (citing Wood v. State, 4 S.W.3d 85, 87 (Tex.App.—Fort Worth 1999, pet.
ref’d)). Accordingly, we conclude that this was a matter of trial strategy. Appellant’s
argument is prefaced on the conclusion that, had a lesser-included charge been
requested and given, then the jury would have found appellant guilty of only the lesser-
included offense. This is nothing more or less than speculation and, in the face of a trial
strategy decision, we are not convinced that appellant would have forgone his all or
nothing approach under any circumstances. Therefore, as to his assertion regarding
the lesser-included offense issue, appellant has not met his burden of proof in an
ineffective assistance claim. See Freeman, 125 S.W.3d at 511. Therefore, appellant’s
claim of ineffective assistance of counsel, as it pertains to the lesser-included offense
issue, is overruled.
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Failure to Know the Law Relating to Punishment
Appellant’s last issue regarding trial counsel’s performance contends that,
“counsel’s fundamental lack of knowledge and/or misinterpretation of the law regarding
Texas criminal sentencing law was deficient and fell below an objective reasonable
standard of representation.” Two facts are apparent from the record: 1) appellant was
not eligible for probation from a jury because of his prior felony conviction; and 2) the
offense for which appellant was indicted was a “3g” offense that, by statute, did not
permit the trial judge to grant a probation. See TEX. CODE OF CRIM. PROC. ANN. art.
42.12 § 3g(a)(2). That trial counsel is charged with knowledge of the applicable law is
beyond question. See Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998)
(trial counsel’s misunderstanding of the law constituted ineffective assistance of
counsel). Appellant refers the Court to Aldrich v. State for the proposition that counsel’s
lack of understanding of the basic principles of the law applicable to him is deficient
performance under the first prong of Strickland. See Aldrich v. State, 296 S.W.3d 225,
242 (Tex.App.—Fort Worth 2009, pet. ref’d).
However, we must disagree with appellant’s contention that the record before us
demonstrates that appellant would have made a different decision had he been
accurately informed of the law relating to probation. The record is silent on that point
and, because of this silence, we are asked to speculate that appellant would, in fact,
have elected to do something differently. Such speculation is not how deficient
performance is to be determined. See Freeman, 125 S.W.3d at 511.
10
Additionally, we see nothing in the record to demonstrate appellant has been
harmed even if we found that trial counsel’s performance was deficient. Appellant was
not eligible for probation from the jury; therefore, he elected to go the judge for
punishment. The fact that the judge could not grant probation did not cast harm on
appellant, for to decide otherwise would mean we must infer that the jury either could
grant probation or would have given a shorter sentence. We know that the jury could
not grant probation, and speculation about a shorter sentence is just that: speculation.
Appellant has not carried his burden to demonstrate harm. See id. Finally, the record
reflects that appellant received a sentence of four years confinement on a second-
degree felony that carried a possible punishment of up to 20 years confinement. See
TEX. PENAL CODE ANN. § 12.33 (West 2011). Therefore, we decline to find trial counsel’s
action regarding sentencing to be ineffective.
Having considered all allegations of ineffective assistance of counsel and having
determined that in none of the instances was trial counsel ineffective, we overrule
appellant’s first issue.
Failure to Admonish Appellant of the Right Against Self-Incrimination
Appellant’s final issue contends that, because the record is devoid of any
admonition regarding the right against self-incrimination and because appellant did
testify, the trial court must have committed reversible error. However, such a
proposition ignores existing case law that has determined that the trial court has no duty
to admonish a defendant of his right against self-incrimination when he is represented
by counsel. See Johnson v. State, 169 S.W.3d 223, 235 (Tex.Crim.App. 2005). We are
11
not disposed to depart from this well-established precedent by placing that burden upon
the trial court. Accordingly, appellant’s second issue is overruled.
Conclusion
Having overruled appellant’s issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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