Tilford Anthony Joseph v. State of Texas--Appeal from 232nd District Court of Harris County

No. 04-01-00055-CR
Tilford Anthony JOSEPH,
Appellant
v.
The STATE of Texas,
Appellee
From the 232nd Judicial District Court, Harris County, Texas
Trial Court No. 851691
Honorable Mary Lou Keel, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice

Delivered and Filed: November 21, 2001

AFFIRMED

Factual and Procedural Background

On May 5, 2000, at approximately 11:00 p.m., appellant Tilford Joseph and a companion, Zaren Scott, were riding their bicycles on Sandpiper Street in Houston, Texas. They were approached by Officers Cantu and Stafford of the Houston Police Department's Fondren Gang Task Force because their bicycles did not have headlights as required by city ordinance. As Officer Cantu ordered the men to stop, he observed Joseph release something from his left hand. Joseph and Scott went to the squad car as ordered, and Officer Cantu located a plastic bag with what turned out to be 25 rocks of crack cocaine at the location where he observed Joseph drop something. Joseph was arrested for possession with intent to manufacture or deliver a controlled substance, and Scott was arrested for public intoxication.

Joseph pled not guilty to the first-degree felony offense of possession with intent to deliver cocaine weighing more than 4 grams and less than 200 grams. He was convicted by a jury, pled true to the enhancement allegation in the indictment, and was sentenced by the 232nd District Court to 20 years confinement. Joseph has challenged the effectiveness of assistance provided by his appointed trial counsel in the guilt-innocence phase of his trial. Joseph claims he was denied effective assistance of counsel due to specific instances of his attorney's conduct as well as the cumulative nature of his attorney's errors. Because Joseph has presented no evidence of prejudice and has failed to show a reason why prejudice should be presumed in this case, we affirm Joseph's conviction.

Ineffective Assistance of Counsel

To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the appellant must show: (1) counsel's performance was so deficient that the attorney was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. A reviewing court must presume the attorney provided adequate assistance and that all significant decisions were made in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689; Roberson v. State, 852 S.W.2d 508, 512 (Tex. Crim. App. 1993). Additionally, appellant's allegations of ineffective assistance must be firmly grounded in the record. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Instances of Alleged Ineffective Assistance Joseph complains of five specific instances of ineffective assistance of counsel. First, he claims counsel was ineffective in introducing evidence of Joseph's four prior felony convictions where the admissibility of that evidence had not yet been determined by the judge. Joseph claims that such evidence would have been inadmissible had defense counsel not introduced it first. However, the record does not support such a conclusion.

At a bench conference, defense counsel informed the court that Joseph wished to testify and urged the court to grant the defense's motion to testify free from impeachment. The court, however, permitted the prosecution to elicit testimony of Joseph's four prior convictions without going into any details of those convictions. Defense counsel understood the court's ruling, as illustrated by the fact that the he repeated the decision, and his interpretation of the ruling was confirmed by the court. Under Strickland, a reviewing court must presume that all significant decisions are made in the exercise of reasonable professional judgment unless the record contains evidence showing otherwise. Jackson, 877 S.W.2d at 771.

Joseph argues that under the Court of Criminal Appeal's decision in Theus v. State, evidence of these prior convictions was inadmissible because of its undue prejudicial effect under TEX. R. EVID. 609. Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). That decision set forth five factors to be considered by courts in determining whether evidence of prior convictions will be more prejudicial than probative. See id. at 880. Those factors are:

(1) the impeachment value of the prior crime;

(2) the temporal proximity of the prior crime to the charged offense;

(3) the similarity between the past crime and the offense being prosecuted;

(4) the importance of the defendant's testimony; and

(5) the importance of the credibility issue.

Joseph was convicted of felony possession of a controlled substance, cocaine, in 1998; felony delivery of a controlled substance in 1998; felony delivery of a controlled substance in 1996; and felony resisting arrest in 1997. The parties agree that the impeachment value of these convictions weighs against admission because they do not involve deception. Id. The parties likewise agree that because all four felony convictions took place within four years of the trial, the second Theus factor favors their admission. The State concedes that the third factor favors exclusion of the prior convictions because of the similarity of the offense being prosecuted and the prior convictions. The parties therefore agree about the application of the first three Theus factors. The parties seemingly disagree about the final two factors and the district court's proper ruling upon examination of those factors.

There were two stories presented in this case - one presented by officers of the Houston Police Department, and one presented by Joseph and his witnesses. The jury was entitled to weigh the credibility of each witness who presented a version of that story. Coleman v. State, 545 S.W.2d 831, 833 (Tex. Crim. App. 1977). As the Theus court noted, "application of these factors to a particular case cannot be performed with mathematical precision...." Theus, 845 S.W.2d at 880, citing M. Graham, Federal Practice and Procedure: Evidence (Interim Edition) 6513 at 65-66. The district court ruled that the evidence of prior convictions was admissible. The decision to admit this evidence, however, was within the district court's wide discretion. Theus at 881. With the knowledge that he could be impeached by his prior convictions, Joseph chose to take the stand. In light of the court's ruling, defense counsel's decision to lessen the impact of these convictions by introducing their existence first is reasonable trial strategy. Joseph's first point of error is overruled.

In his second point of error, Joseph alleges his counsel was ineffective because he introduced evidence of a defense witness's convictions and prior bad acts where such evidence would not otherwise have been admissible. When the defense's second witness, Zaren Scott, took the stand, he was asked by defense counsel whether he was in the custody of the sheriff's department and whether he was incarcerated for any type of felony. Scott answered that a felony assault charge was pending against him. Evidence of pending felony charges is not properly admitted for impeachment purposes. Dixon v. State, 2 S.W.3d 263, 267 (Tex. Crim. App. 1998); Tex. R. Evid. 608(b); Tex. R. Evid. 609. Although it is puzzling why defense counsel would impeach his own witness by asking these questions, both parties asserted in their briefs that Scott may have been wearing jail clothes at the time he testified. If that is the case, defense counsel's decision to explain the witness' uniform before asking him any substantive questions was a reasonable response to the obvious question the jurors would have been asking themselves. However, Scott ended the line of questioning with the answer "that's it." That statement opened the door for the prosecutor to impeach Scott based on his past misdemeanors. Joseph has failed to show that, but for these questions, a reasonable probability exists that the outcome of the proceeding would have been different. It is not enough for a defendant to show that his attorney's errors had some conceivable effect on the proceeding's outcome. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The existence of prejudice to Joseph's case has not been shown, so we cannot conclude that this line of questioning undermined confidence in Joseph's conviction. Therefore, Joseph's second point of error is overruled.

Third, Joseph claims that defense counsel was ineffective in failing to request a jury instruction concerning the legality of Joseph's arrest. Under Vasquez v. State, counsel is deficient in failing to request a jury instruction if "it would have been error for the trial court to refuse such an instruction had one been requested." Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). The Texas Code of Criminal Procedure provides that a jury shall be instructed on an issue "in any case where the legal evidence raises an issue...." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2001). Joseph's counsel filed a motion to suppress the cocaine recovered from the scene asserting that the police officers did not have probable cause to detain Joseph for riding his bicycle without a headlight. The motion was denied and the district court concluded that the stop of Joseph was legal. Therefore, no legal issue existed under article 38.23(a) sufficient to warrant an instruction. See Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). Joseph was not entitled to a jury instruction on this issue; therefore, counsel's failure to request one is not evidence of deficient performance. Joseph's third point of error is overruled.

In his fourth point of error, Joseph asserts that his counsel was ineffective in failing to object to improper jury argument made by the prosecutor. Joseph complains that although evidence had been introduced placing the value of the 25 crack rocks recovered at about $500, the prosecutor improperly referenced the value of the drugs at $2,500 in her closing argument. Joseph also argues that the jury could infer that the prosecutor had special knowledge about the street value of these drugs, and counsel's failure to object shows deficiency. The prosecutor made this argument in response to Joseph's contention that even if Joseph possessed the cocaine, the State had not proven intent to deliver. Joseph merely concluded that this exaggeration by the prosecutor harmed him and has not shown how counsel's failure to object to this statement prejudiced the outcome of the case. Therefore, Joseph's fourth point of error is overruled.

Finally, Joseph points to counsel's failure to object to evidence of Zaren Scott's extraneous offense to prove the cumulative nature of the alleged ineffectiveness. Officer Stafford testified that as he and Officer Cantu approached Joseph and Scott, Scott "had a very, very strong smell of marijuana about his breath and clothing." Based on the officers' conclusion that Scott was impaired to the point of endangering himself and others, he was arrested for public intoxication. Joseph claims that counsel was deficient for failing to object to this evidence under Tex. R. Evid. 404(b). The State contends this is the type of same-transaction, contextual evidence admissible under Rule 404(b) to aid the jury in understanding the occurrences. This court need not reach a conclusion under either of these arguments because Joseph has failed to show how his counsel's failure to object prejudiced the outcome of the case. Joseph's fifth point of error is overruled.

Totality of Representation

The Court of Criminal Appeals as well as this court have held that the cumulative effect of assistance can, in some instances, deprive a defendant of the right to reasonably effective assistance and undermine the confidence in the result of a trial that is guaranteed by meaningful adversarial testing. Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Greene v. State, 928 S.W.2d 119, 126 (Tex. App.--San Antonio 1996, no pet.). This body of law turns on the idea that counsel's actions can be so deficient as to overcome the second prong of Strickland requiring a criminal defendant appealing his conviction to show prejudice. United States v. Cronic, 466 U.S. 648, 659 (1984); Rosales v. State, 841 S.W.2d 368, 375 (Tex. Crim. App. 1986). Joseph claims to have been provided this generally ineffective assistance by his trial counsel. The record before us indicates that defense counsel put on the threshold defense required by the Sixth Amendment. Joseph did not enter this trial as an unarmed prisoner to be sacrificed to the gladiators. See Cronic, 466 U.S. at 656. Nor did the State run up and down the field while defense counsel sat on the bench. See Greene, 928 S.W.2d at 121. The totality of Joseph's representation does not undermine this court's confidence in his conviction. See Welborn, 785 S.W.2d at 396. Joseph's final point of error is overruled. (1)

Because Joseph has failed to make a showing of prejudice in either the allegation that his attorney was ineffective in his specific conduct or in the overall representation of Joseph, the conviction is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. This disposition, however, is not the end of the line for Joseph. As the Court of Criminal Appeals noted in Thompson, defendants who raise ineffective assistance of counsel claims on direct appeal are not prohibited from filing an application for writ of habeas corpus on this issue because of the fact-intensive nature of the claim. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). "This would provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at that juncture of the trial." See id. at 814-15.