TERRY GLENN WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued March 3, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00185-CR
............................
TERRY GLENN WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 055632-397
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, Moseley, and Fillmore
Opinion By Justice Bridges
        Appellant Terry Glenn Williams appeals his conviction for indecency with a child by sexual contact and accompanying sentence. We affirm.
 
Background
 
        Appellant was charged by a two-count indictment with the first degree felony offense of aggravated sexual assault of a child and with the second degree felony offense of indecency with a child. Appellant entered his plea of not guilty to both counts and the case proceeded to trial before a jury on January 6, 2009. The jury found appellant guilty of the second degree felony and the case proceeded to a punishment hearing before the same jury on January 7, 2009, after which the jury assessed appellant's punishment at 40 years in the Texas Department of Criminal Justice, Institutional Division.
Analysis
 
        Appellant raises two issues on appeal. First, he complains that his motion for mistrial should have been granted when the alleged victim, through unresponsive testimony, stated that appellant committed extraneous offenses which were highly prejudicial to appellant in front of the jury, and to which no notice of intent to introduce evidence thereof was given by the State. During the State's case in chief, it called the victim, T.O., as a witness.   See Footnote 1  T.O. was nine-years-old at the time of trial. The following testimony is at issue:
 
 
        Q.
 
Was anybody else around whenever this happened?
 
 
 
        
 
 
 
        A.
 
My brothers.
 
 
 
        
 
 
 
        Q.
 
Did they ever see it happen?
 
 
 
        
 
 
 
        A.
 
Yeah, because he did it to my brother - - my little brother once or twice.
 
 
 
        
        Defense Counsel:
 
Objection, Your Honor. Your honor, can we approach?
 
 
 
        The Court:
 
Yes. [T.O.], hang on just a second. I need to talk to the attorneys for a second.
 
 
 
 
        (At the Bench, on the record).
 
 
 
        Defense Counsel:
 
Your Honor, I'm going to ask for a mistrial at this time on the extraneous offense.
 
 
 
        The Court:
 
Okay. I'm going to deny the mistrial. You need to be careful with - -
 
 
 
 
        District Attorney:
 
I think I was. I don't think that was - - I don't think it was intentional. It was a child, so from that standpoint. But I don't think it rises to the level of necessitating a mistrial.
 
 
 
        The Court:
 
Be careful. And if you want me to, if I have some kind of limiting instruction I would be willing to do that.
 
 
 
 
        Defense Counsel:
 
Please, I ask that that be stricken and a limiting instruction be given that that be disregarded.
 
 
 
        The Court:
 
Okay.
 
 
 
 
        Defense Counsel:
 
It may make it worse, but I've got to preserve the record.
 
 
 
        The Court:
 
I understand. Okay.
 
 
 
 
        (Open Court).
 
 
 
        The Court:
 
For purposes of the record, the Court is going to sustain the objection and strike the last answer from the record. And I'm going to instruct the jury. Ladies and gentlemen of the jury, with respect to the last answer given by [T.O.], with respect to other extraneous acts, you are instructed to disregard that for purposes of this trial . . . .
 
 
(emphasis added).
        It is well-settled that testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (citing Gardner v. State, 730 S.W.2d 675, 696-97 (Tex. Crim. App. 1987); Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982)). Appellate courts generally presume the jury followed the trial court's instructions in the manner presented. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). The presumption is refutable, but appellant must rebut the presumption by pointing to evidence that the jury failed to follow the trial court's instructions. Id. (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)). Therefore, appellant must either rebut the presumption that the jury followed the trial court's instruction or successfully argue that “it would be impossible to remove the harmful impression from the jury's mind.” See Thrift, 176 S.W.3d at 224; Kemp, 846 S.W.2d at 308. In either case, a trial court does not abuse its discretion by denying a mistrial unless the improper conduct is “so prejudicial that expenditure of further time and expense would be wasteful and futile.” See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).         Under the circumstances before us, we conclude the uninvited and unembellished reference to appellant's extraneous offense-although inadmissible-was not so inflammatory as to undermine the efficacy of the trial court's instruction to disregard. See Gardner, 730 S.W.2d at 696-97 (witnesses statement that “[appellant] told me that even when he was in the penitentiary, that he had stomach problems” was cured by trial court's instruction to disregard). We, therefore, overrule appellant's first issue.
        In his second issue, appellant argues he received ineffective assistance of counsel because his trial counsel stipulated at punishment to two prior felony convictions for offenses committed by appellant when (1) such prior convictions were not alleged in the indictment and (2) no notice of intent to use such prior convictions for punishment enhancement was filed by the State prior to trial.   See Footnote 2 
         The following pertinent exchange took place, outside the presence of the jury, after the jury found appellant guilty of indecency with a child:
 
        District Attorney:
 
We're going to stipulate to the fact that the defendant has two prior felonies and had been convicted with the second felony being subsequent to final judgment of the first, which the range would - - the punishment range from 25 to 99 or life. And we have agreed not to read the enhancement paragraphs in front of the jury. And we'll just [illegible] to them with that punishment range.
 
 
 
        The Court:
 
Let me make sure I understand. So what you're telling me is that the agreement between the parties is that rather than read the notice of enhancement or have the jury understand what the underlying felonies were, that he is stipulating that he has been convicted previously of two consecutive felonies, that the punishment range is 25 to 99 or life each.
 
 
 
 
        District Attorney:
 
That's correct.
 
 
 
        Defense Counsel:
 
That's correct.
 
        A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. at 813.
        There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
        Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as “ineffective.” Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is “simply undeveloped and cannot adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)).
        The record is silent as to why appellant's trial counsel stipulated to the two prior felony convictions. Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable, and we overrule appellant's second issue. Bone v. State, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14.
        Having overruled both of appellant's issues, we affirm the judgment of the trial court.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090185F.U05
 
 
Footnote 1 The record before us includes appellant's motion to require child to testify in which he “requests that the testimony of the alleged child victim be required before the court because the accused has the constitutional right to confront witnesses against him.”
Footnote 2 The record reflects the State did not file its notice of intent to enhance punishment range until January 8, 2009, the day after the trial court entered its judgment against appellant.