Renaldo Clopton v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RENALDO CLOPTON, )

) No. 08-02-00283-CR

Appellant, )

) Appeal from the

v. )

) Criminal District Court #3

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0158402-PJ)

)

O P I N I O N

Appellant Renaldo Clopton appeals his conviction for theft of property, less than $1,500, enhanced to a state jail felony by two prior theft convictions. After finding the two prior felony convictions alleged in the enhancement paragraphs to be true, the jury assessed punishment at 20 years= imprisonment and imposed a fine of $10,000. In his sole issue, Appellant asserts that he was denied his right to effective assistance of trial counsel. We affirm.

On the morning on October 28, 2001, Carmen Murillo and Juan Puente, security officers at a Target store in Dallas, Texas, watched Appellant on their security cameras as he walked into the store, heading towards the jewelry department. The officers saw Appellant pick up two Timex clocks on display at the jewelry counter and stuff them down the front of his pants. Appellant then walked towards the electronics department. The security officers left their office and went out on the sales floor to follow Appellant. At the electronics department, they saw him select two compact discs and place them in his jacket. The officers followed Appellant as he walked towards the front of the store, passed all the registers, and left the store. They approached Appellant, identified themselves as security, and escorted him back to their office.

At the security office, Appellant gave Mr. Puente the compact discs and the clocks and asked Mr. Puente not to send him to jail. Appellant explained that he took the items because he was trying to get back with his girlfriend and that he had just gotten out of jail three days ago. When Mr. Puente asked Appellant if he had any identification, Appellant handed Mr. Puente a citation from the Dallas police. The citation was for theft at a nearby Walgreen=s, which had occurred an hour earlier. Following Target store policy for shoplifting in an amount over $10, the security officers called the police to report the incident.

Officer George Waller of the Dallas Police Department responded to the call at the Target store and placed Appellant under arrest based on information obtained from the security officers. When Officer Waller told Appellant that he was under arrest and going to the county jail, Appellant asked if he could receive a Class C citation instead. The Dallas Police Department policy is to issue citations for theft if the dollar amount of the property is under $50 in value. The total value of property taken at the Target was $67.96. Appellant told Officer Waller that if he was taken to the jail, he was going to be sent to prison. The Target security officers had informed Officer Waller that Appellant had received a Class C citation for theft earlier that day at the Walgreen=s.

Richard Hamb, a fingerprint specialist in the Identification Bureau of the Dallas County Sheriff=s Department testified regarding the prior theft convictions against Appellant alleged in the indictment. After comparing Appellant=s fingerprints to those on certified copies of the previous judgments against Appellant, it was Mr. Hamb=s opinion that the fingerprints matched. On cross-examination, Mr. Hamb stated he was 100 percent certain that Appellant was the same person convicted in the previous theft convictions.

In his sole issue, Appellant contends that he was denied effective assistance of trial counsel because counsel failed to stipulate to the prior theft convictions and failed to object under Texas Rules of Evidence 404(b) and 403 to witness testimony concerning Appellant=s statements about his prior criminal history and his unrelated citation for theft.

We review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail, the appellant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. The appellant must also show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

In reviewing an ineffective assistance of counsel claim, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. When faced with a silent record as to counsel=s strategy, this Court will not speculate as to the reasons for counsel=s actions. See Jackson, 877 S.W.2d at 771. It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.

In this case, Appellant filed a general motion for new trial, but it did not allege ineffectiveness of his counsel and the motion was overruled without a hearing. The record before this Court is silent as to why Appellant=s trial counsel chose not to stipulate to the prior theft convictions. With respect to the Appellant=s claim that his trial counsel failed to raise Rules 404(b) and 403 objections to witness testimony regarding Appellant=s voluntary statements, the record shows that outside the jury=s presence the trial court conducted a hearing on Appellant=s statements and found them admissible. The record is silent as to why trial counsel chose not to raise further objections to this evidence. The record before us is insufficient to overcome the presumption that counsel=s conduct falls within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.

Further, Appellant has failed to show that trial counsel=s conduct prejudiced his defense, that is, that there is a reasonable probability that the result of the proceeding would have been different but for his trial counsel=s failure to stipulate to the prior theft convictions or for his trial counsel=s failure to raise Rules 404(b) and 403 objections to testimony regarding Appellant=s statements. At trial, the State presented testimony from two witnesses who observed Appellant take the items from the Target store without paying for them. Through Mr. Hamb=s testimony on fingerprint analysis, the State introduced evidence concerning Appellant=s prior theft convictions for identification purposes. Even assuming trial counsel=s conduct was deficient, it probably did not affect the outcome of the jury=s guilty verdict. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

August 7, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)