Kenneth Earl Jackson v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00431-CR

Kenneth JACKSON,

Appellant

v.

The STATE of Texas,

Appellee

From the 399th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CR-6664

Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 19, 2004

AFFIRMED

A jury found defendant, Kenneth Jackson, guilty of theft between $1,500-$20,000. The trial court assessed his punishment at twenty years' confinement. Defendant complains of his conviction in two issues on appeal. We affirm.

INEFFECTIVE ASSISTANCE OF COUNSEL

In two issues on appeal, defendant argues he received ineffective assistance of counsel because of several errors and omissions made by his counsel during trial. Defendant contends his trial counsel failed to: (1) contest the photo identification line-up in either a pre-trial motion or during trial; (2) contest the fingerprint evidence adduced at trial; (3) object to language in the jury charge; (4) request a limiting instruction or object to evidence admitted for a limited purpose in a pre-trial ruling; (5) object to a witness' statement the trial court admitted into evidence; and (6) make a meaningful opening statement. Although defendant's arguments invoke both state and federal constitutional protections, he has not separated his points of error in such a way as to argue a separate ground of relief under the Texas Constitution. Therefore, we must assume that he is claiming no greater protection under the Texas Constitution than that provided by the United States Constitution. Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993).

We follow the standard of review for evaluating claims of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, a defendant must show that counsel's deficient performance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, defendant must affirmatively prove counsel's conduct prejudiced him. Id. In other words, defendant must prove by a "reasonable probability" that the proceeding would have resulted differently but for counsel's unprofessional conduct. Id. A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume trial counsel acted pursuant to a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. Normally a silent record cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Here, the appellate record does not affirmatively demonstrate any of defendant's six claims of ineffective assistance of counsel. In his first claim, defendant argues his counsel failed to: (1) file a pre-trial motion to have a hearing on the admissibility of the photo line-up; (2) obtain an expert to discuss potential problems with the line-up; and (3) conduct an effective cross-examination of the witnesses who attended the line-up. Defendant also argues in his second claim that his counsel should have called an expert to examine and testify to the fingerprint evidence offered at trial. Further, he asserts his counsel inadequately cross-examined the State's fingerprint expert. However, the record does not contain any explanations for counsel's failure to contest the photo identification line-up or indicate why counsel did not request a pre-trial hearing on the admissibility of the photo line-up. Instead, the record demonstrates defendant's counsel filed some pre-trial motions and requested numerous other motions orally at defendant's request, which the trial court denied. Counsel may have decided not to file or request other motions as a part of his trial strategy. See Saenz v. State, 103 S.W.3d 541, 545 (Tex. App.--San Antonio 2003, pet. ref'd). The record also reveals counsel conducted his cross-examination of the photo line-up witnesses questioning both their ability to identify defendant and discrepancies in their statements to the police. Counsel also focused his cross-examination of the fingerprint expert on the methods and process in which he made the fingerprint identification. Defendant's suggestion that his trial counsel should have conducted cross-examination in a different manner fails to rebut the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Resendiz v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003). Further, because defendant has made no showing that an expert was able to testify and that defendant would have benefitted from his testimony, we must presume trial counsel's decision not to call an expert witness on the fingerprint evidence was within the range of reasonable professional assistance. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).

Defendant's argument that he received ineffective assistance of counsel because his counsel (1) requested that the trial court include certain party language in the jury charge and (2) failed to object to the State's definition of "intentionally" must also fail. The record demonstrates that defendant was one of three individuals involved in the alleged scam to steal money. Absent any evidence to explain why counsel requested that the trial court include the party language in the charge, we must presume counsel acted pursuant to a strategic plan. Further, the record demonstrates the trial court incorporated the Texas Penal Code's definition of "intentionally," into the jury charge verbatim. See Tex. Pen. Code Ann. 6.03(a) (Vernon 2003). Therefore, we cannot say trial counsel was ineffective for failing to object to the jury charge, especially when it did not contain any material errors. See Luster v. State, 85 S.W.3d 865, 871 (Tex. App.--Eastland 2002, pet. ref'd).

Defendant also argues his counsel failed to properly preserve error on a pre-trial ruling. Before trial, defendant's counsel presented the trial court with a motion in limine regarding a San Antonio Police Department website that listed the details of a South African Charity scam. The website listed defendant's name and picture as a person charged with the crime of theft. Counsel filed a motion in limine to limit the State's use of the website. The trial court granted the motion and limited the State's use of the website to only prove how the police developed defendant as a suspect. The record reveals a lengthy discussion between defendant's counsel, defendant, the State prosecutor, and the trial judge about defendant's concerns that the State would present the website as proof of his guilt. Subsequent to the jury's verdict and the trial court's dismissal of the jurors, defendant's counsel learned, while conversing with members of the panel, that one of the jurors viewed the contents of the website on her own accord before the trial concluded. However, after further questioning, she stated that she had already decided defendant's guilt and did not share any other information with the other members of the jury. Counsel immediately lodged an objection with the trial court, which the trial court overruled. The only testimony concerning the website consisted solely of an officer's testimony to describe how the police developed defendant as a suspect. The record further reveals that the State did not continue to question the officer or any other witnesses about the website. Other than the officer's testimony, the record contains limited testimony about the website. Defendant argues that his counsel's failure to re-urge his objections to the website during trial caused this juror to view the website's content during trial. However, with only this limited instance, we cannot say the proceeding would have had a different outcome had counsel objected to this limited testimony to re-urge his previous objections.

Defendant's final two complaints about his counsel's performance must also fail. He alleges his counsel performed deficiently by failing to object to the admission of a witness' statement into evidence. Further, without citing legal authority to support his argument, defendant contends he received ineffective assistance of counsel because counsel's opening statement was meaningless and contained no substantive argument. However, as with the rest of defendant's claims, they are not firmly founded in the record. We will not reverse a conviction based on ineffective assistance of counsel grounds when counsel may have based his actions or omissions upon tactical decisions. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). Defendant's trial counsel may have proceeded as he did for strategic reasons and the record is silent as to counsel's reasons for proceeding as he did. The trial judge even stated on the record that defendant's counsel was "very qualified to try the case." For all these reasons, we presume trial counsel acted pursuant to a strategic plan for representing defendant. Therefore, defendant has failed to rebut the presumption that trial counsel's decisions were reasonable and after a thorough review of the record and the totality of defendant's representation, we cannot say counsel's performance was deficient.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH