Steven Alan Chrisman v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00348-CR
Steven Alan CHRISMAN,
Appellant
v.
STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6533
Honorable Mark Luitjen, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

Steven Alan Chrisman ("Chrisman") was convicted of criminal solicitation of a minor, a third degree felony. In his sole issue on appeal, Chrisman argues that his trial counsel rendered ineffective assistance. We affirm the trial court's judgment.

Background

In April 2001, Chrisman began on-line conversations with a fourteen-year-old girl named "Terri." Unbeknownst to Chrisman, "Terri" was really Detective William Lowry of the San Antonio Police Department's Vice Unit who worked in the area of on-line child predator investigations. For over one month, Chrisman and "Terri" had several on-line chats and exchanged photographs. San Antonio Police Officer Lori Morales ("Morales") provided photographs of herself when she was a teenager so that Detective Lowry could send them to Chrisman. Eventually the chats became overtly sexual in nature, and Chrisman arranged to meet "Terri" in San Antonio for the purpose of having sexual intercourse. On May 22, 2001, Chrisman drove from Austin to meet "Terri" at a pre-arranged meeting spot, the parking lot of a Home Depot Store. Morales, dressed as "Terri," waited for Chrisman while San Antonio Police Officers monitored her. When Chrisman arrived, he entered the store. A few minutes later, he exited the store and signaled Morales to follow him. After Morales approached Chrisman's car, police officers arrested him.

As part of the investigation, Chrisman's computer was seized from his Austin home. While examining the hard drive for transcripts of internet chats, Russell Brandau ("Brandau"), a criminal investigator, discovered several child pornographic images on the hard drive. Investigators obtained a search warrant, and Brandau made copies of the pornographic images he found in the hard drive.

Chrisman pleaded guilty to criminal solicitation of a minor and elected to have the jury assess punishment. During the punishment phase, the State offered fifteen child pornographic images found on Chrisman's hard drive into evidence. Chrisman's counsel stated he had no objection to the introduction of such evidence, and the evidence was admitted. The jury subsequently sentenced Chrisman to ten years confinement in the Institutional Division of the Department of Criminal Justice and assessed a $10,000 fine.

Chrisman filed a motion for new trial. The trial court denied the motion without hearing. Chrisman timely appealed.

Ineffective Assistance of Counsel

In his sole issue on appeal, Chrisman argues that he received ineffective assistance of counsel during the punishment phase of his trial. Specifically, Chrisman argues that his attorney was ineffective because: (1) trial counsel refused to submit a jury charge instruction on the issue of renunciation; and (2) trial counsel did not object when child pornographic images extracted from his computer's hard drive were offered into evidence.

Standard of Review

The United States Supreme Court has set forth the legal standard to be applied in cases of this nature in Strickland v. Washington, 466 U.S. 668 (1984). Appellant must first show the representation by his trial counsel fell below an objective standard of reasonableness. Id. at 687-88. Second, appellant must show that in reasonable probability the proceeding would have ended differently but for the challenged conduct. Id. at 687. Failure of appellant to prove either the required showing of unreasonable performance or probable harm defeats his claim of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The Strickland test is also the governing authority for claims of ineffective assistance of counsel during the punishment phase of a trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

Under Strickland, a reviewing appellate court must apply a strong presumption that trial counsel's questioned conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Our own Court of Criminal Appeals has stated claims of deficient trial counsel must be firmly supported by the record to include reflecting the motives behind trial counsel's challenged actions. Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Generally, the record on direct appeal will not be sufficient to show trial counsel was so deficient as to fall below an objective standard of reasonableness because "[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, No. 04-01-00099-CR, 2003 WL 1535253, at *3 (Tex. Crim. App. 2003) (not yet released in permanent law reports); see Bone v. State, 77 S.W.2d 828, 836 (Tex. Crim. App. 2002).

1. Failure to Request Jury Charge Instruction on Renunciation

Chrisman first argues that his trial counsel was ineffective because he failed to request a jury instruction on the issue of renunciation. (1) Renunciation is an affirmative defense to a charge of solicitation. Tex. Pen. Code Ann. 15.04(b) (Vernon 2003). If a defendant has been found guilty of solicitation, "[e]vidence that defendant renounced his criminal objective by abandoning his criminal conduct [or] countermanding his solicitation" is admissible as mitigation at the punishment phase. Id. 15.04(d). If there is a finding of renunciation, the punishment is lowered one grade than that provided for the offense committed. Id. Here, Chrisman pleaded guilty to a third degree felony of criminal solicitation of a minor, Tex. Pen. Code Ann. 15.031(b), 22.011, which is punishable by imprisonment for a term not more than ten years, but no less than two years, Id. 12.34 (Vernon 2003). If the jury had made a finding of renunciation, Chrisman's offense would have been reduced to a state jail felony. Id. 12.35; 15.04(d). A defendant who commits a state jail felony, however, is not eligible for community supervision whether recommended by a judge or jury. Tex. Code Crim. Proc. Ann. art. 42.12, 3(e)(2), 4(d)(2) (Vernon Supp. 2003).

In the instant case, the trial record shows that trial counsel withdrew his request for renunciation instruction because if the offense was lowered from a third degree felony to a state jail felony, Chrisman would not have had the opportunity to receive community supervision. At trial the following exchange took place between the trial court and Chrisman's trial counsel:

The Court: [E]arlier we had a discussion concerning renunciation, and we have since come to a meeting of the minds. It appears that the defense does not wish to have that instruction, and for the record, that would be because if they do find the Defendant guilty of the lesser, they could not - this jury could not grant probation; is that correct, [defense counsel]?

[Defense Counsel]: Pardon me?

Mr. Reyes: Yes

[Defense Counsel]: Yes

The Court: I'll let you sit up here and talk. The answer is yes.

[Defense Counsel]: The charge - - we have no problem with the charge.

The Court: All right. But you withdraw your request for renunciation in the Defendant's instruction?

[Defense Counsel]: Yes.

Trial counsel's action is presumed to be sound trial strategy, and the record in this case does not negate this presumption. See Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995). The fact that another attorney might have pursued a different course of action does not support a finding of ineffective assistance of counsel. Mares v. State, 52 S.W.3d 886, 890 (Tex. App.-San Antonio, pet ref'd); Owens v. State, 916 S.W.2d 713, 717 (Tex. App.-Waco 1996, no pet.). Because the record clearly indicates the reason trial counsel withdrew his request for a renunciation instruction, and because Chrisman has failed to overcome the presumption that it was sound trial strategy, we do not conclude that trial counsel's action fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88; Chambers, 903 S.W.2d at 33.

Chrisman also argues that trial counsel never informed him of the renunciation issue, state jail punishment, or that he decided to withdraw the renunciation instruction. There is nothing in the record, however, to indicate whether trial counsel failed to communicate this information to Chrisman. "[I]n order to defeat Strickland's presumption of reasonable professional assistance, 'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Mallet, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 814. Because Chrisman's allegation is not firmly founded in the record, Chrisman has failed to rebut the presumption that trial counsel's assistance was reasonable. See Strickland, 466 U.S. at 687; Mallet, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 814.

2. Failing to Object to Introduction of Evidence

Chrisman next argues that his trial counsel was ineffective because he allowed the State, without objection, to introduce images of child pornography extracted from his computer's hard drive during the punishment phase of the trial. There is nothing in the record to indicate why counsel did not object to the introduction and admission of the images. Because the ineffective assistance claim was raised on direct appeal, trial counsel has not had an opportunity to respond to Chrisman's allegation. See Rylander, 2003 WL 1535253, at *3; Bone v. State, 77 S.W.3d at 836; Mallet, 65 S.W.3d at 63. A silent record that provides no explanation for trial counsel's action generally cannot rebut the presumption that his performance was the result of sound or reasonable trial strategy. Mallet, 65 S.W.3d at 63; see also Bone, 77 S.W.3d at 830, 836; Thompson, 9 S.W.3d at 813. "'Failure to make the required showing of . . . deficient performance . . . defeats the ineffectiveness claim.'" Thompson, 9 S.W.3d at 814 (quoting Strickland, 466 U.S. at 687). Because the record is silent as to a possible explanation regarding counsel's action and because trial counsel has not had the opportunity to explain his actions, we find that Chrisman has failed to rebut the presumption that his counsel's performance was the result of sound or reasonable trial strategy. See Rylander, 2003 WL 1535253, at *3; Mallet, 65 S.W.3d at 63; Bone v. State, 77 S.W.3d at 830, 836. Chrisman, therefore, has failed to show that his counsel's actions fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 814.

Furthermore, evidence as to any matter, including extraneous acts, may be offered during the punishment phase of a trial if the trial court deems it relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 3(a)(1) (Vernon Supp. 2003); see Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). The failure to object to admissible evidence is not ineffective assistance. See Burruss v. State, 20 S.W.3d 179, 188 (Tex. App.-Texarkana 2000, pet. ref'd). Because the evidence of the extraneous pornographic images was admissible at the punishment phase of the trial, trial counsel's failure to object to such evidence was not ineffective assistance. See id. Appellant has failed to satisfy the first prong of Strickland. Therefore, we overrule Chrisman's sole issue.

We affirm the trial court's judgment.

Phylis J. Speedlin, Justice

Do not publish

1. Upon a timely request, a defendant has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, regardless of what the trial court may or may not think about the credibility of evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Darty v. State, 994 S.W.2d 215, 218 (Tex. App.-San Antonio 1999, pet ref'd). The parties do not dispute that Chrisman was entitled to an instruction on renunciation; therefore, we must determine whether trial counsel's decision to not submit a renunciation instruction was ineffective assistance.