Roderick Taylor Jackson v. The State of Texas--Appeal from 196th District Court of Hunt County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00257-CR

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RODERICK TAYLOR JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 21,585

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Roderick Taylor Jackson was convicted by a jury of committing multiple thefts pursuant to one scheme or continuing course of conduct, the aggregate amount of the stolen property being $1,500.00 or more, but less than $20,000.00. // Jackson's punishment, with enhancements, was assessed by the jury at twenty years' imprisonment and a $10,000.00 fine. Jackson appeals, contending that the trial court erred in failing to grant him a new trial and that his trial counsel was ineffective for failing to request a limiting instruction to the jury. We overrule these contentions and affirm the judgment.

The standard of review for a trial court's order denying a motion for new trial is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). An appellate court does not substitute its judgment for that of the trial court, but decides only whether the trial court's decision overruling a motion for new trial was arbitrary and unreasonable. Pina v. State, 127 S.W.3d 68, 72 (Tex. App. Houston [1st Dist.] 2003, no pet.).

In his motion for new trial, Jackson alleged his trial counsel was ineffective for: 1) failing to request a limiting instruction to the jury, and 2) failing to show to all the witnesses a picture of the person Jackson claims was the person who committed the crime. The first basis on which Jackson contended in his motion for new trial that his counsel was ineffective is the same as his second point of error in this appeal, but he does not complain of the trial court's failure to grant his motion for new trial on that basis. Instead, he complains of the failure to grant the motion for new trial only on the second basis for ineffective assistance of counsel alleged in the motion. We therefore will consider both points of error together as alleging ineffective assistance of counsel. If we determine counsel was not ineffective, then it follows that the trial court did not abuse its discretion in denying the motion for new trial, since ineffective assistance of counsel is the only basis on which Jackson contended he was entitled to a new trial.

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance, an appellant must, by a preponderance of the evidence, prove: (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient representation prejudiced appellant's defense. Strickland, 466 U.S. at 687; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, an appellant must show that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). In other words, the appellant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. If, however, "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). "Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).

The indictment in this case alleged nine separate thefts in nine separate paragraphs. The State abandoned the allegations in two of these paragraphs at the beginning of trial. After the State rested its case-in-chief at the guilt/innocence phase, Jackson's counsel moved, outside the presence of the jury, for instructed verdicts of not guilty as to the allegations in two additional paragraphs. The State presented no evidence concerning the allegations contained in one of these paragraphs and did not oppose Jackson's motion as to that paragraph. The State's evidence as to the allegations contained in the other paragraph proved an attempted theft, but failed to prove an appropriation as alleged in the indictment. The trial court granted the motion for instructed verdict as to both paragraphs. Jackson's counsel then moved the court to strike the testimony concerning the attempted theft and to instruct the jury to disregard it in its entirety. The trial court impliedly denied this motion, stating that the evidence was relevant to show Jackson's identity and continuing course of conduct. // Jackson now complains because his trial counsel failed to request a limiting instruction at the time this evidence was admitted.

Tex. R. Evid. 105(a) provides in relevant part as follows:

When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

The Texas Court of Criminal Appeals has construed this rule to require a request for a limiting instruction at the time of the admission of the evidence. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001).

[W]hen an extraneous offense is admitted in the guilt phase of a trial, failing to give a limiting instruction at the time of admission may result in the jury drawing inferences about the defendant's guilt based upon character conformity, a use of the evidence that was not contemplated by the trial court.

Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1999). A defendant not only has the burden of requesting a limiting instruction at the time the evidence is admitted, the defendant also has the burden of requesting such an instruction in the court's charge to the jury. Varelas, 45 S.W.3d at 631 n.3. When a defendant properly requests a limiting instruction, the trial court errs in not giving it. Id. at 631.

As noted above, in responding to Jackson's motion to strike the testimony concerning the attempted theft, the trial court stated that the testimony was admissible for the purpose of showing Jackson's identity and continuing course of conduct. These statements, however, were outside the presence of the jury. If Jackson's counsel had requested the court to instruct the jury that it could consider this testimony only for those limited purposes, the trial court would have been required to give that instruction. See id. The record in this case, however, is silent as to why trial counsel did not request such an instruction to the jury. Trial counsel testified at the hearing on Jackson's motion for new trial and acknowledged he did not make such a request. However, he was not asked and he did not volunteer why he did not request a limiting instruction. We decline to speculate as to what his explanation might have been.

Because trial counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and because the decision not to request a limiting instruction could have been legitimate trial strategy, we must conclude, in the face of a silent record, that Jackson failed to meet his burden of showing that his trial counsel's assistance in this regard was ineffective.

Jackson also contends his trial counsel was ineffective in failing to show to all the witnesses a picture of his brother-in-law, Freddy Royal, whom Jackson claims was the person who committed the crime. A private investigator, appointed by the trial court at the request of appellate counsel, testified at the hearing on Jackson's motion for new trial that he showed a picture (presumably after the trial) of Royal to several of the victims and that two of them identified Royal as the person who actually committed the crime. Jackson complains the only person at his trial who was shown a picture of Royal was a defense witness. Jackson argues that, if his trial counsel had shown Royal's picture to all the victims, he could have established serious doubts about those victims' in-court identification of him. He contends this failure deprived him of the effective assistance of counsel.

Again, the record is silent as to the reasons for trial counsel's conduct. Counsel acknowledged at the hearing on Jackson's motion for new trial he did not show the picture to each and every witness, but he was not asked and he did not volunteer why he so acted. Such conduct could clearly be legitimate trial strategy, and we cannot hold, based on this silent record, that such conduct denied Jackson reasonably effective assistance of counsel.

Nonetheless, the evidence of Jackson's identity as the perpetrator of these crimes was sufficient for the jury to find him guilty beyond a reasonable doubt. Four victims made positive identifications of Jackson in the courtroom as the person who stole from them. One of these victims testified the person who stole from him had a scar on his left arm. Jackson displayed his arm to the victim in open court, and the victim identified it as the same one he saw on the person who stole from him. Three victims also identified Jackson at the scene of his arrest. One alleged victim could not make a positive identification of Jackson in court or at the scene of his arrest.

If it is true, as the investigator testified at the hearing on the motion for new trial, that two of the victims identified a picture of Royal as the person who stole from them, then perhaps Jackson's counsel could have "muddied the water" by showing that picture to all the victims at trial. However, in the absence of any evidence as to why counsel acted as he did, we cannot say Jackson was denied effective assistance of counsel by counsel's failure to show Royal's picture to all the witnesses.

Having concluded Jackson was not denied effective assistance of counsel, we also conclude the trial court did not abuse its discretion in denying Jackson's motion for new trial.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: September 22, 2004

Date Decided: January 5, 2005

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