JASON DOYLE MATHEWS v. THE STATE OF TEXAS--Appeal from 24th District Court of Jackson County

NUMBER 13-05-639-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JASON DOYLE MATHEWS, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Jackson County, Texas.

 
MEMORANDUM OPINION
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Ya ez

A jury found appellant, Jason Doyle Mathews, guilty of the felony offense of driving while intoxicated (DWI). (1) The trial court assessed punishment at ten years' imprisonment and imposed a $10,000.00 fine. In two issues, appellant contends he received ineffective assistance of counsel. We affirm.

Background

Appellant's wife testified that she called the police around 7:00 p.m. one evening after she and appellant became involved in a domestic dispute. She also testified that appellant had been drinking most of the day and was intoxicated. Appellant left the house before the police arrived. Around 11:30 p.m. that evening, appellant was stopped for a traffic violation. Officer Rodney Roberson testified that when he approached appellant, he detected a strong odor of alcohol. After checking appellant's driver's license, Officer Roberson recognized appellant as the same person being sought in connection with the earlier disturbance. Appellant admitted to Officer Roberson that he had consumed six "tall boys," or about nine beers. A second officer, Deputy Omecinski, joined Officer Roberson as "back-up." After appellant failed one field sobriety test, refused to take others, and refused to provide either a breath or blood sample, he was arrested for DWI. Both officers testified that based on their training and experience, appellant was intoxicated.

Standard of Review and Applicable Law

Claims alleging ineffective assistance of counsel are evaluated under the familiar standard of Strickland v. Washington, (2) which requires that the defendant prove: (1) that counsel's representation or advice fell below objective standards of reasonableness; and, (2) the result of the proceeding would have been different but for trial counsel's deficient performance. (3) The defendant bears the burden of proving this claim by a preponderance of the evidence. (4) In order for an appellate court to find trial counsel ineffective, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." (5) Generally, when the record is silent as to counsel's motivations for tactical decisions, an appellant cannot overcome the "strong presumption that counsel's conduct was reasonable." (6) "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." (7) Unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it," appellate courts will not speculate in order to find trial counsel's reasoning or strategy rendered his performance deficient. (8) "[T]he presumption that trial counsel's performance was reasonably based in sound trial strategy, coupled with the absence of any supporting evidence in the record of unreasonableness, compels a reviewing court to consider ways in which trial counsel's actions were within the bounds of professional norms." (9)

The failure to object to inadmissible evidence, even extraneous offense evidence, does not necessarily constitute ineffective assistance. (10) The failure to request a limiting instruction is not, by itself, ineffective assistance. (11)

Analysis

In his first issue, appellant complains his trial counsel was ineffective for failing to object to extraneous offense evidence elicited by the State from his wife. Specifically, appellant complains that the State questioned his wife "concerning other assaults or acts committed by appellant against her or others, none of which were objected to by trial counsel." Appellant specifies ten instances of "other assaults," including numerous instances of appellant "punching" and "hitting" his wife, and pulling a gun on her and threatening to kill her. However, the complained-of testimony regarding other assaults was elicited by the State on re-direct examination, after appellant's counsel had questioned appellant's wife on cross-examination regarding whether (1) she and appellant argued frequently over money, (2) she had called the police, with allegations appellant had assaulted her, on three or four other occasions, (3) she had separated from appellant and only "went back" to him after he received some settlement monies, and (4) the present argument with appellant was similar to previous arguments. (12)

The State argues that it was trial counsel's strategy to elicit such testimony on cross-examination in order to show that appellant's wife had made "numerous" prior claims against him because she was vindictive and motivated by money. We agree. The record reflects that counsel's actions were part of a reasonable trial strategy to show that appellant's wife was biased, prejudiced, and untruthful. "That a trial strategy does not work does not mean that counsel was ineffective." (13) Because the record is silent as to why counsel failed to object to the complained-of evidence, we must presume that counsel's actions were reasonably based on sound trial strategy. (14) We overrule appellant's first issue.

By his second issue, appellant complains his counsel was ineffective for failing to request a limiting instruction concerning the extraneous offense evidence in the jury charge. Appellant contends that "[b]ecause there was no requested instruction, trial counsel waived any error to the jury charge, and allowed the State to argue whatever reason it wanted for the use of the extraneous acts."

The State argues that "[i]t is reasonable that, as a trial tactic, counsel did not wish to remind the jury" of the complained-of testimony. Here, the record is silent as to counsel's reasons for failing to request a limiting instruction. Because the record does not reflect counsel's reason for not requesting an instruction, we find no basis for concluding he did not exercise reasonable professional judgment. (15) Accordingly, appellant has failed to rebut the presumption that his trial counsel's actions or inactions were reasonable. (16)

Moreover, appellant has wholly failed to show that he was prejudiced by his counsel's alleged errors. With regard to both issues, appellant asks only "how can trial counsel's performance not be constitutionally deficient, and how can such deficiency not have prejudiced [a]ppellant?" Thus, appellant has failed to demonstrate with a reasonable probability, that a different outcome would have resulted but for his counsel's alleged errors. We overrule appellant's second issue.

We conclude appellant has failed to overcome the presumption that trial counsel's actions and inactions were part of his trial strategy. We affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex. R. App. P. 47.2(b).

 

Memorandum opinion delivered and filed

this the 5th day of July, 2007.

1. See Tex. Pen. Code Ann. 49.04, 49.09(b)(2) (Vernon 2003 and Supp. 2006).

2. See Strickland v. Washington, 466 U.S. 668, 686 (1984).

3. See id. at 688-94; Mata v. State, No. PD-1724-04, 2007 Tex. Crim. App. LEXIS 695, at **5-6 (Tex. Crim. App. June 6, 2007); Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).

4. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

5. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); See Mata, 2007 Tex. Crim. App. LEXIS 695, at **10-11.

6. Mata, 2007 Tex. Crim. App. LEXIS 695, at *10 n.14; Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

7. Mallett, 65 S.W.3d at 63; Mata, 2007 Tex. Crim. App. LEXIS 695, at **9-10.

8. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)) .

9. Mata, 2007 Tex. Crim. App. LEXIS 695, at *12.

10. Greene v. State, 928 S.W.2d 119, 123 (Tex. App.-San Antonio 1996, no pet.).

11. Id. at 124.

12. Texas Rule of Evidence 611(b) provides that a witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Tex. R. Evid. 611(b). The rules, however, are silent with respect to redirect and recross. Case law reveals that questions may be asked on redirect examination to produce an explanation of answers given on cross-examination from which erroneous inferences may be drawn by the jury. See Rogers v. State, 815 S.W.2d 811, 816 (Tex. App.-Amarillo 1991 no pet.). In addition, the Dallas Court of Appeals has held that a trial judge has discretion to allow the scope of redirect examination to exceed the scope of cross-examination. See Bradeen v. State, 711 S.W.2d 263, 264-65 (Tex. App.-Dallas 1986, no writ). Thus, complained-of evidence elicited by the State on redirect examination likely was admissible. Failure to object to admissible testimony does not constitute ineffective assistance. Moore v. State, 983 S.W.2d 15, 21 (Tex. App.-Houston [14th Dist.] 1988, no pet.).

13. Johnson v. State, 176 S.W.3d 74, 79 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd).

14. See Mata, 2007 Tex. Crim. App. LEXIS 695, at *12.

15. See Ali v. State, 26 S.W.3d 82, 88 (Tex. App.-Waco 2000, no pet.).

16. See Mata, 2007 Tex. Crim. App. LEXIS 695, at *12.