JORGE LUIS ESCUDERO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 30, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01199-CR
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JORGE LUIS ESCUDERO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80490-07
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OPINION
Before Justices Richter, Lang, and Myers
Opinion By Justice Richter
        A jury convicted appellant of possession of a controlled substance with intent to deliver in a drug-free zone and the court sentenced him to seventeen years' imprisonment and a $5000 fine. In two issues on appeal, appellant asserts the trial court erred in denying his motion for a mistrial and trial counsel was ineffective. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
I. Background
 
        Appellant lived with Adrienna Briones in a one-bedroom apartment. The apartment manager suspected nefarious activity in the apartment because she saw people going to the apartment late at night and repeatedly observed the same vehicles parked near the apartment.
        One afternoon, the apartment manager called the police when she saw a woman let herself into appellant's apartment. When the police knocked on the door of appellant's apartment, the woman answered the door. A man in the apartment repeatedly made movements toward his pockets, and when officers frisked him, they discovered about a gram of powdered cocaine in one of his pockets.
        Appellant was not home, but Briones was there and consented to a search of the apartment. During the search, the police found marijuana, smoking pipes, little baggies containing marijuana, digital scales, and other empty baggies of the type used in the drug trade. Officers also found a locked safe in the bedroom. Briones was unable to open the safe, so she contacted appellant and asked him to return. The officers waited for forty-five minutes, and when appellant did not arrive, seized the safe and obtained a warrant to search it. Within the safe, officers discovered 4.47 grams of cocaine, $160 cash (in predominately $20 denominations), a Xanax pill, and appellant's social security card and paycheck. Appellant was charged with possession of cocaine with an intent to deliver in an amount of more than four grams but less than two hundred grams within a thousand feet of a school. See Tex. Health & Safety Code Ann. § 481.112(d), 481.134(c) (West 2010). Appellant pled not guilty and the case was tried to a jury.
         Briones testified at trial and described her relationship with appellant as “bad.” When asked to explain, Briones stated “[w]hen I was pregnant, he pushed me around.” A bench conference ensued. Although the bench conference was not recorded, the judge subsequently stated on the record that the defense “did object timely to this [the bad act evidence] issue.” Trial recessed for the day before the State concluded its examination of Briones. After the jury left, appellant moved for a mistrial based upon the bad act evidence, or in the alternative, a jury instruction to disregard the evidence. The trial court took the matter under advisement until the following morning. The next day, the judge denied the motion for mistrial but instructed the jury to disregard the testimony. Briones testimony resumed. During this time, Briones testified without objection that appellant directed her to deliver a bag of drugs to a person who came to the apartment with the right code word.
        The jury ultimately returned a guilty verdict, and appellant elected to have the court determine punishment. During closing argument at the punishment hearing, trial counsel stated that he may have been negligent in not objecting to the extraneous evidence about Briones delivering the drugs and requested that the court not hold this against appellant in assessing punishment. Appellant was sentenced to seventeen years' imprisonment and a $5000 fine.
 
II. Mistrial
 
         In his first issue, appellant argues the trial court erred in denying his motion for mistrial after Briones testified that appellant “pushed her around” when she was pregnant. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is appropriate for only “highly prejudicial and incurable errors.” Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard the testimony unless it appears the evidence was so clearly calculated to inflame the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). When reviewing a trial court's denial of a motion for mistrial, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the trial judge); and (3) the certainty of the conviction absent the misconduct (the strength of the evidence supporting the conviction). Hawkins v. State, 135 S.W.3d 72, 77-78 (Tex. Crim. App. 2004).
         Here, after conducting a hearing outside the jury's presence, the trial court instructed the jury not to consider the testimony about the alleged misconduct “for any purpose whatsoever.” The trial court also told the jury why they should disregard the testimony-because it was irrelevant and should not have been brought up. Although the testimony had the potential to prejudice the jury, it was not so inflammatory as to create an irreversible impression in the minds of the jurors. In fact, the testimony was somewhat ambiguous in the sense that the witness did not elaborate on whether she was literally or figuratively “pushed around.” While the prosecutor admitted the testimony had been intentionally elicited, he claimed it was relevant to a defense he anticipated from appellant. Once the trial judge explained that the State had no right to preemptively admit extraneous offenses in anticipation of cross-examination, the prosecutor did not repeat the error or make any reference to the testimony during closing argument. In addition, the evidence establishing that appellant possessed a controlled substance was particularly strong. Thus, absent the comment appellant's conviction was relatively certain.
        Under these circumstances, we cannot conclude the complained-of testimony was so inflammatory as to undermine the efficacy of the court's instruction to disregard. Therefore, the trial court did not abuse its discretion in denying the motion for a mistrial. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (holding prompt instruction to disregard will usually cure error associated with improper question and answer, even one regarding extraneous offenses). Appellant's first issue is overruled.
                         III. Ineffective Assistance of Counsel
         In his second issue, appellant argues counsel was ineffective because he did not properly object to extraneous evidence and because he did not file a motion to suppress. Specifically, appellant asserts counsel should have objected when Briones testified about delivering drugs for appellant, and “should not have allowed” Briones to testify that appellant “pushed her around” when she was pregnant. Appellant further argues counsel should have moved to suppress the search of the safe.          A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See id. We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
        Appellant maintains his ineffective assistance claim is conducive to evaluation on direct appeal because counsel made certain statements about his representation during the trial. We disagree.
         During his closing argument to the court at the punishment phase of trial, counsel stated:
 
Through my own fault, perhaps through my negligence, I allowed another extraneous offense, after the State had been warned, to come in, and that is the fact that he was allegedly delivering drugs, using her as an agent. I did not object, and perhaps I'm at fault for that, but that should not have come in. And this is after the State was instructed not to bring in any extraneous offenses.
 
        To establish an ineffective assistance claim, however, appellant must prove that there is no possible strategic reason for counsel's actions. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Trial counsel should be given the opportunity to explain his actions before being denounced as “ineffective.” Id. Significantly, counsel's statement references only his failure to object to one of the two pieces of extraneous evidence about which appellant now complains - the testimony about the drug delivery. Counsel's statement does not encompass the testimony about being “pushed around” or the failure to file a motion to suppress. Thus, of the three instances appellant identifies as ineffective assistance, only the failure to object to the drug delivery testimony is arguably supported by the record.
        But even if we were to consider counsel's speculative statement about the objection he may have missed as an admission of deficient performance, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Indeed, the decision not to object to inadmissible evidence may, in some instances, be justified as sound trial strategy. Darby v. State, 922 S.W.2d 614, 624 (Tex. App.-Fort Worth 1996, pet. ref 'd).
        As for the other alleged instances of deficient performance, the record before us is “simply undeveloped and cannot adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). While appellant filed a motion for new trial, he did not raise or attempt to develop an ineffective assistance claim. Although appellant now asserts counsel should not have allowed Briones to testify about being pushed around, the record affirmatively reflects that counsel not only objected to the testimony, but also moved for a mistrial and a limiting instruction. With regard to the motion to suppress, there is nothing in the record to affirmatively demonstrate why counsel elected not to seek suppression. There is also no evidence to suggest that a motion to suppress would have been granted. See Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998). Therefore, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813- 15. Because the record is silent as to the reasons for counsel's actions, appellant has failed to rebut the presumption that counsel's decisions were reasonable. Appellant's second issue is overruled. The judgment of the trial court is affirmed.
                                                                          
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
091199F.U05