McKnight, Charles Antwaine v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmed and Memorandum Opinion filed December 22, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00999-CR

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CHARLES ANTWAIN McKNIGHT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 964,334

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

Charles Antwain McKnight appeals a conviction for aggravated robbery[1] on the ground that he was denied effective assistance of counsel. We affirm.

Appellant=s two issues argue that he was denied effective assistance of counsel under the United States and Texas Constitutions, respectively, because his trial counsel, during the punishment phase of trial, failed to object to the admission of an exhibit (the Aexhibit@) consisting of Harris County jail records containing numerous unadjudicated extraneous crimes and acts of misconduct. Appellant contends that the exhibit was inadmissible because it would not support a preliminary finding that appellant committed the acts listed in it beyond a reasonable doubt.

A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, __ U.S. __, 125 S. Ct. 872 (2005).[2] To show ineffective assistance of counsel for a failure to object during trial, an appellant must show that the trial court would have committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). In order for extraneous offense evidence to be admissible at the punishment stage of trial, it must be sufficient to show that the defendant committed the acts in question beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Pamphlet 2005); Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (plurality op.). However, this does not require the evidence to prove the defendant guilty of each element of a crime with regard to each extraneous offense, but only that the acts of the extraneous offenses are attributable to the defendant beyond a reasonable doubt. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).

In this case, because appellant does not cite authority or otherwise demonstrate that the records contained in the exhibit could not constitute proof that the extraneous offenses listed therein were attributable to him beyond a reasonable doubt, he has failed to show that the exhibit was inadmissible, and thus that his trial counsel was ineffective by not objecting to its admission. In addition, because the jury was instructed not to consider evidence of any extraneous offenses unless it had been shown beyond a reasonable doubt that the defendant committed them, and because we presume the jury followed this instruction,[3] appellant=s two issues fail to show a reasonable probability that, but for counsel=s failure to object to the exhibit, the outcome of the proceeding would have been different. Accordingly, appellant=s two issues are overruled and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed December 22, 2005.

Panel consists of Justices Fowler, Edelman and Guzman.

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

[1] A jury found appellant guilty and assessed punishment of 50 years confinement.

[2] The Texas Court of Criminal Appeals adopted the same standard for determining ineffective assistance of counsel under Article I, Section 10 as under the Sixth Amendment. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (noting proper analysis under Texas Constitution is found in Strickland v. Washington, 466 U.S. 668 (1984)). Therefore, we will consider both the United States and Texas constitutional claims together.

[3] See, e.g., Ross v. State, 133 S.W.3d 618, 624 (Tex. Crim. App. 2004).