In the Matter of Y.R.C.--Appeal from 314th District Court of Harris County

Affirmed and Memorandum Opinion filed May 8, 2003

Affirmed and Memorandum Opinion filed May 8, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00404-CV

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IN THE MATTER OF Y.R.C.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 01-09089J

M E M O R A N D U M O P I N I O N

A jury found appellant Y.R.C., a juvenile, committed the offense of aggravated robbery with a deadly weapon. See Tex. Pen. Code Ann. ' 29.03(a)(2) (Vernon 2003). The trial court rendered judgment that appellant engaged in delinquent conduct and committed him to the Texas Youth Commission for a term of twenty-five years, with a possible transfer to the Institutional Division or the Pardons and Paroles Division of the Texas Department of Criminal Justice. In a single point of error, appellant claims trial counsel rendered ineffective assistance by failing to object to evidence of extraneous offenses and failing to request a limiting instruction regarding the extraneous offenses. We affirm.

FACTUAL BACKGROUND

On November 7, 2001, the complainant, Marcos Juarez, and his friend, Mario Cuc, arrived at Juarez=s apartment between 9:00 and 10:00 p.m. As they were getting out of their car, a truck pulled up and parked behind their car. Three men emerged, one of whom had a shotgun. The man with the shotgun and another male approached Cuc, while the third man approached Juarez.

The man with the shotgun cocked the weapon, placed it against Cuc=s body, and demanded money. Appellant searched Cuc=s pockets and took Cuc=s wallet while the third man searched Juarez=s pockets and took Juarez=s wallet. The three men then returned to their truck and left. Juarez saw the license plate of the truck, and Juarez and Cuc contacted the police and provided information about the robbery.

Houston Police Officer Robert Sandoval was dispatched to the apartment, meeting Juarez and Cuc about 10:30 that night. Juarez told Sandoval the robbers were three Hispanic men in their early twenties and they were driving a maroon extended-cab Chevy truck with license plate number SVJ-H12. Sandoval issued a general broadcast relaying this information.

The next night at about 10:30 Sandoval was informed that someone driving on the freeway had been shot in the shoulder by a shotgun. The vehicle from which the shot had been discharged matched the description of the truck involved in the previous night=s robbery. Shortly after hearing about the freeway shooting, Sandoval received a call indicating the same vehicle was also involved in a shooting at an apartment complex.

Sandoval drove to the area of the shooting, eventually located the truck, and followed it for a while, observing four people in the vehicle. After seeing the driver commit a traffic violation, Sandoval turned on his lights. The driver stopped, but when Sandoval and another officer used the public address system to tell the driver to get out of the truck, the driver started going again. Several officers then pursued the truck.

At some point, with the truck still rolling, the driver and the three passengers started jumping out of the truck and ran onto a golf course. Houston Police Officer Tony Tomeo pursued three of the men onto the golf course. One fired a shotgun at Tomeo and another officer, and the three men then fled. With the assistance of a helicopter and canine units, the officers eventually located the men in the top of a tree. Appellant was one of the three men apprehended. The officers also recovered a shotgun at the base of the tree.

Eight days after the robbery, on November 15, 2001, Juarez and Cuc, along with victims of other robberies, viewed live line-ups of the adult suspects at the Harris County Jail. Neither Juarez nor Cuc identified any of the adults. Juarez and Cuc also viewed a photographic spread of juveniles. Cuc selected appellant=s photograph, but Juarez did not.

At trial, the State called Cuc and Juarez as well as the officers involved in investigating the robbery and apprehending the suspects. The State=s witnesses testified about the events described above.

Appellant contended he had been wrongly identified. He testified and presented an alibi defense. Appellant=s girlfriend and her mother testified appellant was with the girlfriend between 10:00 and 11:00 p.m. on the night of the robbery.[1]

DISCUSSION: Ineffective Assistance of Counsel

In his single point of error, appellant contends he was denied effective assistance of counsel because of the cumulative effect of trial counsel=s errors. Specifically, appellant contends trial counsel was ineffective because he did not object to (1) testimony about other robberies in which he and the other persons arrested with him were suspects, (2) testimony regarding a shooting the night after the robbery in question, (3) hearsay testimony that the truck in which appellant was riding was stolen, (4) his girlfriend=s testimony on cross-examination regarding appellant=s association with gang members and cocaine use, and (5) the jury charge for failing to include a limiting instruction regarding extraneous offenses. Appellant also faults trial counsel for not having requested a limiting instruction. We conclude the record in the present case is insufficient to support a claim of ineffective assistance.

To prevail on a claim of ineffective assistance of counsel, an appellant must show (1) counsel=s performance was deficient, i.e., it fell below an objective standard of reasonableness, and (2) appellant was prejudiced, i.e., there is a reasonable probability that but for counsel=s errors, the result of the proceeding would have been different. Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (regarding application of Strickland test to non-capital sentencing proceedings). Appellant bears the burden of proving by a preponderance of the evidence counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Varelas, 45 S.W.3d at 629. An appellant=s failure to satisfy one prong of the Strickland test negates a court=s need to consider the other prong. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, ___ U.S. ___, 123 S. Ct. 1351 (2003).

When we review ineffectiveness claims, our scrutiny of counsel=s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. A fair assessment of attorney performance requires making every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel=s perspective at the time. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

The presumption that an attorney=s actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney=s reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268B69 (Tex. Crim. App. 1999). Instead, without evidence of counsel=s reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined,= and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 440 (quoting 3 W. LaFave, et al., Criminal Procedure ' 11.10(c) (2d ed. 1999), and citing Thompson, 9 S.W.3d at 814); see also Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (stating [a] vague, inarticulate sense that counsel could have provided a better defense is not basis for holding counsel constitutionally incompetent); Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (holding, despite arguably objectionable nature of evidence to which counsel did not object, without some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design ).

Appellant claims his trial counsel was ineffective because he failed to object to evidence of extraneous offenses and failed to request a limiting instruction regarding the extraneous offenses. Here, the record is silent regarding trial counsel=s strategy. In such circumstances, we must presume counsel made all significant decisions in the exercise of professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v State, 68 S.W.3d 197, 199 (Tex. AppCHouston [1st Dist.] 2002, pet. ref=d) (en banc). Because the record is silent, the appellant has failed to rebut the presumption that trial counsel=s actions were based upon a reasonable decision. See Perez v. State, 56 S.W.3d 727, 731B32 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective. Tong, 25 S.W.3d at 714; Broussard, 68 S.W.3d at 199.

Trial counsel did file a motion in limine directed at the extraneous offense evidence. Throughout the trial, counsel thoroughly examined witnesses, objected to certain extraneous offense evidence based on the motion in limine, and vigorously argued on appellant=s behalf. The trial court overruled many of counsel=s objections.[2] Counsel may have concluded that continuing to object after having been repeatedly overruled would have called too much attention to the extraneous offenses, but we cannot speculate. See Toney v. State, 3 S.W.3d 199, 209B10 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (stating court is unable to conclude trial counsel=s performance was deficient when record was silent regarding why counsel, among other omissions, failed to object to improper cross-examination, improper impeachment, improper jury argument, and lack of an instruction in the court=s charge); see also Knight v. State, 91 S.W.3d 418, 424 (Tex. App.CWaco, 2002, no pet.) (concluding, in a drug possession trial, counsel=s failure, among other omissions, to object to evidence of prostitution and other unadjudicated extraneous offenses did not constitute ineffective assistance without any indication in the record why counsel acted or did not act); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (concluding, in face of silent record, trial counsel=s failure, among other omissions, to object to inadmissible hearsay, admission of extraneous offense, improper jury argument, and opinion testimony not ineffective assistance). An isolated failure to object to improper evidence does not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Trial counsel may not have pursued a limiting instruction on the extraneous offenses because of concern that it would lend more credibility to the offenses. See Gholson v. State, 5 S.W.3d, 266, 273 (Tex. App.CHouston [14th] 1999, pet. ref=d) (opining counsel may not have pursued reasonable-doubt instruction on extraneous offense to avoid appearance of giving accusation more credibility than it deserved); Poole v. State, 974 S.W.2d 892, 903 (Tex. App.CAustin, 1998, pet. ref=d) (same); see also Varelas, 45 S.W.3d at 632 (in habeas case, indicating court, in prior direct appeal, had trouble understanding why counsel did not request a burden-of-proof or limiting instruction but refused, in face of silent record, to conclude counsel was ineffective); Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.CBeaumont, 1996, pet. ref=d) (with nothing in record to explain counsel=s conduct, concluding counsel may have avoided requesting limiting instruction in order not to draw further attention to extraneous offenses).

Without a record of counsel=s reasons for not objecting to certain evidence of extraneous offenses and failing to request a limiting instruction regarding the extraneous offenses, we cannot say appellant has overcome Strickland=s presumption counsel=s actions were based on sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Jackson , 877 S.W.2d at 771; see also Bone, 77 S.W.3d at 834B35 (criticizing court of appeals for concluding, without firm support in the record, that counsel performed incompetently).

We overrule appellant=s single point of error.

We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 8, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

[1] According to Juarez=s testimony, the robbery occurred after 10:00 p.m..

[2] When the State indicated it was going to introduce evidence about the chase and the arrest of the suspects, appellant=s counsel argued the evidence was irrelevant and immaterial. The trial court indicated the State could pursue that line of questioning. Appellant=s counsel renewed his objection when the State began questioning the officer who conducted the live-lineup shown to victims of this and other robberies. The trial court overruled the objection. When the State tendered photographs of the truck, including the photograph showing the steering column had been tampered with, appellant=s counsel objected that the photographs Adefinitely show an extraneous offense that=s not before the Court today.@ The court overruled the objection. When Officer Tomeo began to testify about being told the suspects were running toward the golf course, appellant=s counsel objected that the evidence was irrelevant and impermissible. The trial court overruled the objection. When another officer was asked about being called to the golf course, appellant=s counsel interposed, AIf I may, I renew my objection as to relevance and extraneous offenses. I will request a continuing objection regarding whatever happened on that particular Friday.@ Finally, when the last officer began to testify about events at the golf course, appellant=s counsel again objected to the evidence as being irrelevant and evidence of an extraneous offense. The trial court overruled the objection.