Kindle, Rodney Jay v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmed and Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00584-CR

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RODNEY JAY KINDLE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 351st District Court

Harris County, Texas

Trial Court Cause No. 872,494

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O P I N I O N

A jury found appellant, Rodney Jay Kindle, guilty of felony assault against his ex-wife, and Kindle agreed to a punishment of ten years= imprisonment. Kindle appeals in a single issue, contending that his trial counsel was ineffective during the guilt/innocence phase of trial. We affirm.

BACKGROUND

Kindle was in his sister=s apartment, giving his son and his nephew haircuts, when his ex-wife arrived. While she was there, Kindle became angry at her. He shoved her through a sheetrock wall, dragged her across the floor by her hair, shoved his way into a bathroom where she ran for protection, threw a ceramic knickknack at her, hit her in the head with a candlestick, and threatened to kill her. The victim suffered cuts to her head and knees. Kindle also broke the windows in the victim=s car, which was parked outside the apartment, and dented the hood by throwing a large, potted plant onto it. At trial, these events were substantiated by the victim, by Kindle=s eighteen-year-old nephew (who tried to intervene in the assault), and by the investigating officer.

STANDARD OF REVIEW

To prove ineffective assistance of counsel, a defendant must show that (1) counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995).

When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the deleterious effects of hindsight, presuming that counsel made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Kindle bears the burden to show counsel=s ineffectiveness by a preponderance of the evidence, and allegations of ineffectiveness must be firmly founded in the record, affirmatively showing the alleged ineffectiveness. Id. Without record evidence, we cannot conclude counsel was ineffective. See Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001). Except in rare cases, a claim of ineffective assistance must be brought by application for writ of habeas corpus rather than direct appeal, to develop the facts and allow trial counsel to explain. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

ISSUE

Kindle argues that the totality of his lawyer=s representation reveals ineffective assistance of counsel. Specifically, Kindle complains that his lawyer (1) failed to file discovery motions, resulting in a surprise State witness; (2) did not understand the indictment and charges; (3) failed to object to thirty-six allegedly improper questions during trial; and (4) offered incorrect objections in two instances.

To the extent Kindle=s complaint is that the cumulative effect of alleged errors resulted in ineffective assistance of counsel, he presents nothing for review. An allegation that the cumulative effect of two or more purported errors denies a defendant a fair trial is not a proper ground of error and thus presents nothing for review. Stoker v. State, 788 S.W.2d 1, 18 (Tex. Crim. App. 1989); Ford v. State, 14 S.W.3d 382, 395 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Lape v. State, 893 S.W.2d 949, 953 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d).

A. Pre-Trial

Kindle first complains that the trial court overruled his motion to dismiss his attorney. Kindle filed the motion because his attorney was not communicating with him and had not involved him in trial preparation. However, A[a] defendant cannot be deprived of the effective assistance of counsel by actions of the trial court unless those actions prevented counsel from doing something he had the legal right to do.@ Jackson v. State, 992 S.W.2d 469, 476 (Tex. Crim. App. 1999). Thus, Kindle=s motion to dismiss does not demonstrate ineffective assistance of counsel.

Second, Kindle complains that his attorney failed to file pre-trial discovery motions. As a result, his attorney was surprised when the State called a witness who was not named on the State=s witness list. The witness testified about Kindle=s prior assault on a family member. Kindle claims if his attorney had filed a discovery motion, the State could not have called the undisclosed witness. However, A[f]ailure to file pre trial motions, in itself, does not result in ineffective assistance of counsel.@ Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.CHouston [14th Dist.] 1992, no pet.). Additionally, without evidence in the record suggesting otherwise, failure to file pre-trial discovery motions could be a part of trial strategy. See Hammond v. State, 942 S.W.2d 703, 709-10 (Tex. App.CHouston [14th Dist.] 1997, no pet.). Finally, even if the failure to file a discovery motion was deficient conduct, Kindle has failed to meet the second prong of Strickland: but for the error, the result of trial would have been different. See Strickland, 466 U.S. at 688.

B. Indictments

Kindle next complains that his attorney was not familiar with and did not understand the indictment, and thus lacked comprehension of the circumstances surrounding the charges. For example, he contends that his attorney first objected to the faulty indictment[1] after the jury was seated. The trial court allowed the State to amend the indictment, over counsel=s objections. Later, the State abandoned a portion of the indictment. During the exchange before the trial court when the State abandoned this portion, Kindle=s attorney said that he was confused. However, there is no record evidence that these incidents reflect a lack of comprehension about the charges against Kindle. See Tong, 25 S.W.3d at 714. Kindle has failed to prove that these incidents constituted ineffective assistance of counsel.

C. Objections

Kindle next complains that his attorney should have objected at thirty-six different times to hearsay, nonresponsive answers, extraneous offense evidence, leading questions, speculation, or narrative during the State=s examination of an investigating officer, the victim, and Kindle=s nephew. Additionally, he complains that his attorney once objected to exhibits for which no objection was proper and that he objected once to lack of personal knowledge when the correct objections were inadmissible character evidence and more prejudicial than probative.

We have reviewed the testimony to which Kindle claims his attorney should have objected. Much of the testimony was admissible; many of the questions were not leading; and the testimony as a whole was verified by the other witnesses in their description of the assault. An attorney=s Afailure to object to admissible testimony does not constitute ineffective assistance.@ Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.CHouston [1st Dist.] 1986, pet. ref=d). Further, A[i]n regard to making objections, advocates must be free to choose not to make them even if they have a legal basis for doing so. . . . [J]urors often see lawyers who make [objections] as >trying to keep the real truth from them.=@ McKinnyv. State, 2002 WL 226731 at *7 (Tex. App.CHouston [1st Dist.] Feb. 14, 2002, no pet. h.). Thus, even if objections are valid, to prove ineffective assistance of counsel, there must be evidence explaining why counsel did not object. See id. Where the record is silent, as here, we must assume a strategic motivation. See id.

Lastly, we address the two objections that Kindle argues were erroneously lodged. First, Kindle=s attorney objected to photographs because the witness through whom they were offered in evidence was not the person who took them. On appeal, Kindle states that the attorney should not have objected to the photographs. Second, Kindle=s attorney objected to a police officer=s lack of personal knowledge about Kindle=s prior conviction for family violence. On appeal, Kindle argues that his attorney should have objected instead to the prior conviction as (1) inadmissible character evidence and (2) more prejudicial than probative. Even if we assume that Kindle lodged incorrect objections as the result of deficient representation, there is no showing that the outcome of the trial would have been different but for the wrong objections. See Strickland, 466 U.S. at 688.

Accordingly, we overrule Kindle=s sole issue and affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Justices Yates, Seymore and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] The indictment was faulty because it listed Harris County as the defendant.