Vernon Jackson v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-085-CR

VERNON JACKSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 2

Dallas County, Texas

Trial Court # F93-64169-PI

O P I N I O N

Appellant Jackson appeals his conviction for voluntary manslaughter for which he was sentenced to twenty years in prison and a $10,000 fine.

Appellant was charged with the murder of O.C. Hall. The jury convicted him of the lesser-included offense of voluntary manslaughter. The evidence reflects that: (1) Appellant and Hall lived in the same house; (2) they were fighting; (3) Appellant said to Hall, "Give me your money"; (4) Appellant killed Hall by stabbing him nine times with a knife; (5) Appellant was 44-years old and weighed 175 pounds; (6) Hall was 68-years old and weighed 95 pounds; and (7) both Appellant and Hall had been drinking.

Appellant testified he and Hall rented a house together; that Hall got upset about some money someone owed him; that he told Appellant to get out; that he threatened to kill Appellant with a screwdriver; that a fight ensued during which he stabbed Hall four times; that he then left the house and spoke with a retired police officer who then contacted the police; and that he gave the police the knife he used and signed a voluntary statement.

Appellant pled not guilty by reason of self-defense, and was convicted by the jury of the lesser-included offense of voluntary manslaughter. He appeals on two points of error.

Point one: "The trial court erred and abused its discretion at the guilt-innocence phase of the trial when it disallowed Appellant to testify that he had never been convicted of a felony."

On direct examination of Appellant at the guilt-innocence phase, defense counsel asked Appellant if he had ever been convicted of a felony. The prosecutor objected that the testimony was irrelevant at this stage of the proceeding, and the trial court sustained the objection.

Appellant asserts the evidence was relevant as having a tendency to make the existence of his defense of self-defense more probable. Appellant has waived any error by failure to make an offer of proof of the substance of the excluded testimony.

Rule 52(b), Texas Rules of Appellate Procedure, and Rule 103(a)(2), Texas Rules of Criminal Evidence, both require that, when evidence is excluded, the proponent establish the substance of the excluded evidence by making an offer of proof. Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993); Tatum v. State, 799 S.W.2d 569, 571 (Tex. Crim. App. 1990). Appellant failed to make an offer of proof at the guilt-innocence phase, and has waived any error.

More importantly, the trial court properly excluded the proposed testimony as to Appellant's prior criminal record because it was irrelevant at the guilt-innocence phase. An accused may offer character evidence at this phase to show that it is improbable that the accused committed the act charged; however, he may do so only through reputation or opinion evidence. Garcia v. State, 819 S.W.2d 667, 668 (Tex. App. Corpus Christi 1991, no pet.); Tex. R. Crim. Evid. 405. He may not do so by testimony that he has never been convicted of a criminal offense. Smith v. State, 638 S.W.2d 208, 209 (Tex. Crim. App. 1982). Point one is overruled.

Point two: "The appellant's trial counsel was ineffective at the guilt-innocence phase of the trial because said counsel caused the appellant's credibility to be undermined at a critical stage of the trial."

Under this point Appellant contends that his trial counsel, by asking Appellant if he had ever been convicted of a felony, left a possible false impression with the jury and, further, failed to establish the substance of the excluded evidence by making an offer of proof.

The standard of review, where ineffective assistance of counsel is alleged, is set out in Strickland v. Washington, 466 U.S. 688; and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980). The burden of proving ineffective assistance of counsel is on the appellant and must be proved by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). Further, trial counsel's action concerning an isolated evidentiary error may not automatically be transformed into grounds for relief for ineffectiveness of counsel. Ingram v. State, 679 S.W.2d 503, 507 (Tex. Crim. App. 1984).

Appellant has failed to show how the alleged error affected the outcome of the trial as required by Strickland. The record reflects that trial counsel ably presented motions, lodged objections, selected a jury, cross-examined state witnesses, presented defense witnesses, and presented jury argument on Appellant's behalf. Trial counsel also pursued Appellant's theory of self-defense. The jury's verdict finding Appellant guilty only of the lesser-included offense of voluntary manslaughter indicates that defense counsel was very effective in representing Appellant at the guilt-innocence phase of the trial. This is especially true, given the evidence which showed Appellant to be much younger than the victim, outweighing him by 75 pounds, and admitted to stabbing the victim four times, although there were nine stab wounds on the body. Appellant has failed to prove ineffective assistance of counsel. Point two is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 8, 1995

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