George Taylor Tuck aka Butch Tuck v. The State of Texas--Appeal from 339th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-216-CR

GEORGE TAYLOR TUCK aka BUTCH TUCK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 339th District Court

Harris County, Texas

Trial Court # 609,643

O P I N I O N

This is an appeal by defendant Tuck from his conviction for unauthorized use of a motor vehicle (enhanced by two prior felony convictions), for which he was assessed 30 years in the Institutional Division of the Texas Department of Criminal Justice.

Complainant Harding stopped his 1977 GMC pickup in front of Chief Auto Parts and was absent from the car for 3 or 4 minutes in September 1991. He looked around and his car was not there. He called the police.

A few days later Harding saw his pickup sitting in front of a pawn shop. He notified the police who came to the location and saw defendant getting into the pickup. The police drove up to defendant but he sped away as fast as he could. After giving chase, police finally stopped the vehicle and defendant then ran away on foot but was caught by the police.

When Harding recovered his truck he found his license plates under the seat. Different plates had been placed on the vehicle. The vehicle also contained property that did not belong to Harding and which was not in the truck before it was stolen. Such property included a tool box, jumper cable, a tire, a pair of latex gloves, a pair of leather gloves, a set of Volvo keys, a wallet bearing identification in the name of James Thomas McNight, and a camera.

Paul Bloomfield, Appellant's half-brother, testified that he is a builder, that in September 1991, he hired Richard Gomez; that Gomez drove a 1977 GMC truck; that Gomez said he needed to borrow money; that Bloomfield's mother (also Appellant's mother) loaned Gomez $500 and held the truck as collateral. Appellant's mother testified that the water pump in Appellant's car broke and she let him drive Gomez's truck to get parts for his car; and that just prior to these events she had paid $500 for two tickets that Appellant had received for not wearing a seatbelt and for driving without insurance. She speculated that the Appellant ran from the police because of his fear he would lose his driver's license if he was caught again driving without insurance.

The jury found defendant guilty and, in the punishment phase, the State proved up four prior felony convictions. The court sentenced defendant to thirty years in prison. Defendant does not challenge the sufficiency of the evidence, but appeals only on ineffectiveness of trial counsel.

Point one asserts: "Appellant's trial counsel rendered ineffective assistance of counsel in informing the jury that Appellant had a criminal history." In order to reverse a conviction for ineffectiveness of counsel, we must find that Appellant has shown by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, S.Ct., 466 U.S. 668; Hernandez v. State, (Tex. Crim. App.) 726 S.W.2d 53, 55; Derrick v. State, (Tex. Crim. App. 773 S.W.2d 271, 272.

Specifically, Appellant complains of his trial counsel's statements to the jury panel on voir dire and to the jury on final argument. On voir dire Appellant's counsel told the venire:

His Honor has told you that the State has to prove its case by itself. If after you've heard all testimony the State has to offer, if there remains in your mind a reasonable doubt as to the accused's guilt, then you're duty bound on the oath you will take to return a verdict of not guilty, without even hearing the accused's side of it. You've all heard of the Fifth Amendment and that's where that lies. The accused, under our system, never has to give any evidence against himself and there might be many, many, reasons why an accused would not take the witness stand to testify. I know that, although like His Honor said he explained to you, there were still some among you who probably think, "if I was accused of something I didn't do, I would sure get up there and say it," and you would certainly take that as some little proof of a person's guilt if he didn't get before you and deny it. Does anybody feel that way? I know I was surprised that none of you raised your hand. Suppose you heard all of the State's evidence and you think he's probably guilty, if he got up there and told you he didn't do it, you might find him not guilty. But suppose he didn't say it, "I'm going to use that as a little evidence he did." Does anybody feel that way? You see there are reasons why an accused might not take the witness stand. One of the reasons might be that they would bring out something that had nothing at all to do with this particular case that you would want to use against him for just who he is or what he did somewhere else that had nothing to do with this. Perhaps to avoid that possibility, he may not take the stand. Another reason might be when you hear people tell you something, you begin to try to get which one you want to believe because you don't have a built-in polygraph machine. Each of us have our own ways to determine whether or not someone is truthful with you, just like the polygraph machine guesses. That's why they are not admissible in court. They are unpredictable.

I'm going to tell you ahead of time: George Tuck is not going to testify in this case. I've already made that decision and advised him not to, and it has nothing whatsoever to do with his guilt or innocence in this particular matter. I'm sure some of you won't use it against him for something he might have done somewhere else.

Appellant further complains about his trial counsel's remarks during closing argument wherein his counsel stated:

If George Tuck thought his mother had the right to grant him permission to drive the vehicle, then he had not committed an offense under the law that's been given you. Whether or not he fled may or may not have something to do with whether or not he thought he had permission to drive that motor vehicle. But I submit to you that from the evidence you heard, it's just as reasonable and plausible he fled for some other reason and they have apparently intended to insinuate that by the fact they said he was at a pawn shop, leaving an indication that a lot of people get rid of stolen property at pawn shops. But you see that's not what he's being tried for and that's not what you took an oath to try him for. You are not here to determine whether or not you want to help the State get someone off the street that they think is a bad actor. It's a very simple issue. Did he know and intend to be operating a vehicle that he knew was stolen from someone else or that the person who granted him permission had not permission to grant him.

The trial counsel's voir dire remarks confronted the natural suspicion potential jurors might have about a defendant who fails to protest his innocence. The remarks did not suggest Appellant had prior convictions, the remarks instead urged the potential jurors not to speculate as to the reason behind Appellant's decision not to testify and not to reach a verdict on extra-evidentiary considerations.

The complained of remarks in closing argument were dictated by the nature of the evidence that is, the presence in the truck of a wallet belonging to a third party implicated Appellant in other thefts. That property, coupled with the substitution of the truck's license plates and Appellant's flight, supported an inference that Appellant was involved in other criminal activities. Appellant's attorney's decision to directly confront the inference and urge the jury to concentrate instead on the charged offense was a strategic one that we will not second-guess on appeal.

Under the record before us, we do not find that trial counsel's representation fell below an objective standard of reasonableness, and we do not find that there is a reasonable probability that, but for trial counsel's asserted errors, the result of the proceeding would have been different. Point one is overruled.

Point two asserts that trial counsel rendered ineffective assistance of counsel when he failed to move for a mistrial after the prosecutor questioned his witness about his prior criminal history.

In direct examination of defendant's mother, defendant's counsel asked her if she knew of any reason defendant tried to flee from the police if he thought they were trying to apprehend him in the truck. She replied, "Scared, probably, he'd lose his driver's license." The witness was passed to the State and the prosecutor asked, "Mrs. Stockton, he's been in trouble before?" [Defense Counsel]: "I object to that." THE COURT: "Sustained."

The jury was removed and the court instructed the jury to disregard the last question by the prosecutor. Counsel for defendant did not move for a mistrial. Isolated instances reflecting errors of omission do not amount to ineffective assistance of counsel. Hathorn v. State, (Tex. Crim. App.) 848 S.W.2d 101, 118. Testimony referring to or implying extraneous offenses allegedly committed by a defendant can be rendered harmless by an instruction from the trial judge. Davis v. State, (Tex. Crim. App.) 642 S.W.2d 510, 512.

Point two is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 23, 1994

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