Billings, Lawrence Kevin v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmed and Memorandum Opinion filed December 23, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00861-CR

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LAWRENCE KEVIN BILLINGS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 888,561

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

In a single issue, appellant Lawrence Kevin Billings contends he received ineffective assistance of counsel during the punishment phase of his trial for aggravated assault. We affirm.

I. Factual and Procedural Background

Appellant and the complainant, Kourtney Spencer, lived in the same building a house that had been converted to three separate apartments. All of the water heaters for the house were located in Spencer s apartment. On the morning of September 13, 2001, Spencer received a knock on her apartment door. According to her testimony, appellant asked if he could enter her apartment to check his water heater. She testified that appellant entered her apartment and then left, returning a few minutes later to look at one more thing. Spencer stated that while she was standing in her bedroom, appellant approached her from behind and put a cord tightly around her neck. She eventually broke free and called 9-1-1.

Appellant was charged by indictment with the offense of aggravated assault.[1] See Tex. Pen. Code Ann. 22.01, 22.02 (Vernon 2003). A jury found appellant guilty and the trial court assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issue Presented

In his sole issue, appellant argues trial counsel provided him ineffective assistance during the punishment phase of trial.[2] Specifically, appellant contends counsel was ineffective because he failed to make a bill of exceptions after the trial court sustained the State s objection to testimony about a prior assault conviction. Appellant claims that as a consequence of counsel s error, he is precluded on appeal from raising any error made by the trial court in sustaining the objection. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) ( Error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions. ).

III. Analysis and Discussion

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, 10; Tex. Code Crim. Proc. art. 1.051 (Vernon Supp. 2004). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel s deficient performance. Strickland, 466 U.S. at 688 96. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant cannot meet this burden when counsel s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for trial counsel s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). When, as here, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel s performance was deficient. See id. at 833. If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208 09 (Tex. App. Houston [14th Dist.] 2000, pet. ref d).

In this case, appellant complains of ineffective assistance during the testimony of his brother, Timothy Billings, at the punishment stage of the trial. On cross-examination, the prosecution inquired whether Timothy Billings was aware that appellant had been convicted of assaulting appellant s girlfriend in 1996. Timothy Billings replied that he was not specifically aware of it and expressed surprise at the statement. During redirect examination, defense counsel followed this line of questioning, asking Timothy Billings about the identity of the victim of the prior assault and her relationship with appellant. As Timothy Billings began to answer the latter question by stating, I knew it was , the State objected on the ground that the questioning was getting into the facts of the other case. The trial court sustained the objection. Defense counsel then inquired whether Timothy Billings knew the girlfriend to be violent. Before he could answer, the State objected on the same ground and the trial court again sustained the objection.

The record contains no evidence of the reasoning and strategy underlying trial counsel s actions. In the face of a silent record, this court will not speculate about why trial counsel did not offer a bill of exceptions following the trial court s adverse ruling. See Jackson, 877 S.W.2d at 771. In the absence of any evidence to the contrary, we cannot conclude the performance of appellant s trial counsel was deficient. See id.

Furthermore, appellant has not shown prejudice under the second prong of Strickland. See Strickland, 466 U.S. at 692. The record in this case contains no indication of what the excluded testimony would have been. See Henderson v. State, 704 S.W.2d 536, 538 (Tex. App. Houston [14th Dist.] 1986, pet. ref d) (finding it impossible to determine whether failure to submit formal bill of exceptions constituted ineffective assistance when content of statement was not in record). Thus, we cannot determine whether there is a reasonable probability that, but for the failure to preserve appellant s complaint regarding the exclusion of his brother s testimony, a different outcome would have resulted. See Strickland, 466 U.S. at 694. Therefore, appellant s argument is without merit.

Because appellant has failed to show ineffective assistance of counsel, we overrule his sole issue and affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 23, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

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

[1] The indictment included an enhancement paragraph for appellant s felony theft conviction in 1982. Appellant pled true to the enhancement paragraph when the trial court assessed punishment.

[2] Appellant requests this court to reverse and remand for a new trial. However, when the error occurs during the punishment phase of trial, the conviction is retained, but the judgment is reversed and the case remanded for a new punishment hearing. See Hagens v. State, 979 S.W.2d 788, 792 (Tex. App. Houston [14th Dist.] 1998, pet. ref d).