RICKY ALLEN LOONEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed September 29, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 88-01253-CR
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RICKY ALLEN LOONEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the 296th Judicial Court
Collin County, Texas
Trial Court Cause No. 296-80021-88
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Justice Baker
        In a single point of error, Ricky Allen Looney contends that his court-appointed counsel did not render effective assistance. We disagree and affirm the trial court's judgment.
        Appellant was charged with aggravated robbery. A jury found him guilty of the lesser included offense of robbery and assessed punishment at twenty years' confinement and a fine of $10,000.
        Appellant contends his trial counsel was ineffective. In Texas, a defendant in a criminal case is entitled to reasonably effective assistance of counsel, regardless of whether counsel is appointed or retained. See Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983). Under federal standards, to be successful on a claim of ineffective assistance of counsel an appellant must meet a two-prong test. First, a defendant must establish that his counsel's performance was deficient; second, he must show that this deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The required showing of prejudice involves establishing a reasonable probability that, but for counsel's errors, the result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. See Moore v. State, 700 S.W.2d 193, 205 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1113 (1986). Texas has adopted the Strickland standards. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
        In applying this standard, the adequacy of counsel's performance is judged by examining the totality of the representation rather than isolated acts or omissions of trial counsel. The test is applied as of the time of trial without the benefits of hindsight. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).
        Appellant contends that his trial counsel was ineffective based upon four specific instances which are:
        1.        In his opening statement to the jury during voir dire, trial counsel told the jury that appellant was serving time for an Ohio bank robbery.
 
        2.        Trial counsel agreed to a stipulation of evidence which provided that if a Detective Cordone of the Cincinnati Police Department were present, he would testify that appellant stated appellant's Dallas attorney told him the charge would be reduced to robbery if appellant would plead and make restitution, and appellant then said, "I only got about $2,200 in that one, so that will be no problem."
 
        3.        Trial counsel agreed to a stipulation that if Ralph Winkler, Circuit Judge of the court in Ohio, were present and testified, Judge Winkler would testify that Ricky Allen Looney was found guilty of robbery in Ohio on April 13, 1988.
 
        4.        Trial counsel failed, at the punishment stage of the trial, to object to the admissibility of a picture of the Ohio robbery and failed to object to the State's cross-examination of appellant concerning the Ohio robbery.
Appellant contends that these instances denied him effective assistance at every stage of the trial and asserts the outcome of the sentence imposed would have been significantly different but for the ineffective assistance of counsel.
        The record reflects that appellant was charged with aggravated robbery. Evidence presented by the State showed that during the robbery appellant gave the bank teller a note saying he had a gun. The teller who received the note and another witness identified appellant as the bank robber. Additionally, fingerprints taken from the scene were identified as appellant's. The teller testified that appellant handed her a bag and a number of different deposit slip forms among which was a note that said, "Fill the bag with fifty, twenty, ten--I have a gun." The teller testified she complied with the note because she believed appellant had a gun, and she was in fear of injury or death. However, the appellant did not exhibit a gun during the course of the robbery.
        Because of the evidence linking him to the robbery itself, appellant's trial strategy was to combat the aggravated portion of the charge. Appellant authorized trial counsel to stipulate to the facts of the robbery but to plead not guilty to the aggravation portion. According to this strategy, prior to the presentation of the case to the jury, appellant stipulated in open court that he committed the robbery but that he was not guilty of aggravated robbery because he did not have a weapon, used no weapon, and exhibited no weapon. Appellant testified before the court that he had authorized his trial counsel to pursue that theory and further acknowledged that he had turned down several plea bargain offers from the State. In pursuit of the strategy, appellant's trial counsel in his opening statement informed the jury that appellant did rob the bank but that at no time did appellant have a weapon, exhibit a weapon, or use a weapon. The trial counsel also told the jury that appellant was serving time in Ohio for robbery without a weapon. Trial counsel further stated that appellant was willing to do time for the crime he committed but not a crime he did not commit.
        The two stipulations referred to by appellant in his brief were both in writing and agreed to by appellant before they were made to the jury. Both these stipulations were in furtherance of appellant's strategy to overcome the aggravating part of the charge. Finally, the trial counsel's interposing no objection to the Ohio bank robbery photograph was likewise in furtherance of appellant's strategy at the trial. The photograph referred to merely shows appellant at the teller's station in a bank and does not show a weapon.
        Following the presentation of all of the evidence and argument of counsel to the jury, the jury found appellant guilty of the lesser included offense of robbery. Appellant's trial strategy was successful. In our view, counsel's performance was not deficient because it carried out the trial strategy imposed upon counsel by appellant, and trial counsel's performance did not prejudice appellant's defense because it was successful. We conclude that appellant has failed to meet either of the two parts of the Strickland test. We overrule appellant's point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
881253F.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, Retired, Court of Criminal Appeals, sitting by assignment.
File Date[09-29-89]
File Name[881253F]