Tyrone Mills v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-01-00399-CR

Tyrone MILLS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-4885
Honorable Mary Roman, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice
Tom Rickhoff, Justice
Paul W. Green, Justice

Delivered and Filed: November 21, 2001

AFFIRMED

Appellant, Tyrone Mills ("Mills"), was convicted of burglary by a jury and sentenced to forty-five years of confinement. In his sole point of error, Mills asserts that his trial counsel was deficient because during the cross examination of Sheriff Leroy Santos, the State's witness, she "educed proof ... that [he] had committed a similar extraneous offense." After reviewing the record, we find that Mills received effective assistance during his trial, and that the trial court's judgment should be affirmed.

Statement of Facts

On July 18, 2000, the Bexar County Sheriff's Department received a 911 call from Jared Bonn. Bonn reported to the dispatcher that he had heard someone attempting to force entry into his house through the garage. In response, the Sheriff's Department sent several sheriffs, including Officer Gary Spiars, Deputy Sheriff Darrell Harris, Deputy Sheriff Shane Hubner, and Deputy Sheriff Leroy Santos to the Bonn residence. When the sheriffs arrived to investigate, they heard someone climbing a fence at the rear of the house. Hubner then noticed Mills in the yard next door apparently trying to flee on a bicycle. When Hubner asked Mills to stop, he dropped the bicycle and began to flee. Sheriffs Hubner and Spiars then pursued Mills on foot and eventually apprehended him and took him into custody.

Mills was eventually indicted for burglary of a habitation. At trial, the State presented four lay witnesses and seven law enforcement officers who were affiliated with the Bexar County Sheriff's Department, including Sheriffs Spiars, Harris, Hubner, and Santos. Sheriffs Spiars, Harris, and Hubner all testified to the details surrounding Mills' arrest. Sheriff Santos testified, however, that he had arrived after Mills' arrest to inspect the crime scene and search him. More specifically, Santos testified that when he searched Mills, he discovered a screwdriver and a small knife in his possession. Santos' investigation also revealed that Mills had gained entry into the garage and that he had attempted to enter the house through the door, which led from the side of the house to the garage. Santos made this conclusion based on the fact that the lock on the door appeared to have been pried with a small pocket knife. However, on cross examination, Mills' trial counsel questioned Santos about the fact that there was no evidence in the crime scene connecting Mills with the burglary.

That exchange proceeded as follows:

Q: [Counsel] All right. From what you saw in your inspection of the interior of the garage and on the premises around the house, was there any evidence that anyone tried to steal anything?

A: [Santos] There was evidence that somebody was trying to get into the residence.

Q: But there was no evidence that anything had been - there had been any attempt to steal anything; is that correct?

A: Well, the tool box had been moved around. I don't know if the intentions were to take the tool box, but things had been moved around the garage.

To counter this testimony, the State, on redirect examination, elicited information about the items found in Mills' possession when Santos searched him. In particular, Santos told the jury that when Mills was taken into custody, he had a pair of tickets from a pawn shop. But before the State could proceed with further questions, Mills' counsel objected to Santos' testimony concerning the pawn tickets, and she reurged the same arguments she put forth when the court heard her pretrial motion in limine. (1) More specifically, Mills' attorney argued that this information should be excluded because it was more prejudicial than it was probative and that it would only serve to create bias in the jurors' minds. In response to the objection, the State argued that the testimony concerning the pawn tickets was not going to be presented as evidence of Mills' propensity to commit crimes, but only to show that he had pawned some items because he needed money, which was a motive to commit the burglary. Agreeing that this exception was provided for under Rule 404(b) of the Texas Rules of Evidence, the trial court overruled Mills' objection. (2) The State then offered into evidence the confiscated pawn tickets, as well as two silver dollars that were in Mills' possession.

In an effort to lessen the impact of the evidence presented by Santos, Mills' attorney again cross examined him:

Q: [Counsel] Now, pawn tickets, there is nothing illegal about that, is there?

A: [Santos] No, ma'am, there's not.

Q: Sometimes people are in a pinch for money and the good thing about pawning things is you can get them back, right?

A: Yes, ma'am.

Q: Like getting a loan?

A: Yes.

Q: And the silver dollars, you don't know where those came from?

A: No, ma'am.

Q: You are not alleging that any of these things were stolen items or there is no connection to their being -

A: The silver dollars [sic] I had indications there because the Defendant said they were keepsakes from his mother. So I put them in the case jacket.

Q: Okay. Actually that they were from his father.

A: Father.

Q: Did you know that?

A: Right. Something like that. Yes.

Q: Okay. And you have checked out the pawn tickets and there is no indication that any of that was stolen merchandise.

A: No. That's incorrect.

Q: Okay. You have checked them out?

A: Yes, I have.

Q: Okay. Do you have any evidence that they were stolen?

A: Yes, ma'am I do.

Q: Okay. And did you submit that in your report?

A: No, I did not. That's another case.

Q: So then you are not - you're not prepared to show any kind of proof; this is your conclusion at this point in time, but you don't have anything to document it at this point?

A: Not at this point here. Correct, I don't.

Q: I mean, you believed this to be the case, but you don't have any hard evidence to show that to be true?

A: To show what to be true, ma'am?

Q: That the pawn tickets were, in fact, linked to something else?

A: The pawn tickets were linked to another burglary. Yes ma'am.

Q: Okay. I guess I'm just really not understanding what you mean when you say that. You are pursuing something to that effect. Is that what you are saying?

A: Yes. A case is being prepared on one of our pawn tickets taken from the Defendant. Two of the items on that ticket were stolen. They had been pawned three hours before by the Defendant. That's what I am trying to say.

Q: You are investigating that at this time?

A: Yes, ma'am.

Q: These pawn tickets have two different dates; is that right?

A: Correct.

Q: And the dates on those are about the same time, about three -

A: I think they are three days apart.

Apparently, Mills' counsel was not aware of the investigation regarding the pawn tickets found on his person and so this testimony came as a surprise to her. Accordingly, at the charge conference, Mills' attorney informed the trial judge of her surprise and asked for a limiting instruction. More specifically, she told the judge the following:

Your honor, the testimony of Detective Santos was a surprise to me. And I believe that it had a very detrimental impact on the jury. Before we started this trial, I had asked for a Motion in Limine as to prior convictions or extraneous bad conduct, and I was not aware that there was any potential of any of that testimony coming in, and I believe that the impact on the jury would be so detrimental to my client that I would like to - that it is necessary to have an instruction regarding that.

The State then agreed that the evidence could be used only to show Mills' motive, intent, or an absence of mistake, as allowed by Rule 404(b). The trial judge granted Mills' request for a limiting instruction on that particular evidence. Nevertheless, the jury found Mills guilty of burglary of a habitation.

Ineffective Assistance of Counsel

Mills argues that he did not receive effective assistance of counsel during his trial because his attorney was "unreasonably unaware of the inculpating facts underlying the pawn tickets" that were found in his possession. Mills maintains that because his attorney was unaware of this information, she wrongfully elicited testimony from Santos regarding an investigation into other possible burglaries involving him. Mills insists, therefore, that because the jury was allowed to hear this information, he was deprived of a fair trial, and so this court should reverse and remand his case for a new trial.

In order to prevail on this point of error, Mills has the burden to prove, by a preponderance of the evidence, the elements of a two-part test set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In particular, Mills must establish that his

[c]ounsel's performance was deficient. This requires [a] showing that counsel made errors so serious that [he] was not functioning as "counsel" guaranteed ... by the Sixth Amendment. [D]efendant must [also] show that the deficient performance prejudiced the defense. This requires [a] showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687. The proper standard for judging attorney performance is that of reasonably effective assistance, considering all of the circumstances. Id. at 688-690. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of the attorney's performance requires "that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Further, to establish the element of prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one that is sufficient to undermine the confidence in the outcome. Id.

In addition, the constitutional right to effective assistance does not entitle a defendant to errorless counsel. Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981); Brown v. State,974 S.W.2d 289, 291(Tex. App.-San Antonio 1998, pet. ref'd). Whether the Strickland test has been met is to be judged by the totality of the representation rather than by isolated acts or omissions of trial counsel. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986); Banks v. State, 819 S.W.2d 676, 681 (Tex. App.- San Antonio 1991, pet. ref'd). And although the Mills bears the burden of proving ineffective assistance, under the Strickland test, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689; Brown, 974 S.W.2d at 291; see Green v. State,899 S.W.2d 245, 247 (Tex. App.-San Antonio 1995, no pet.). Therefore, any allegation of effectiveness must be firmly grounded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In this case, Mills primarily complains that he had deficient representation because his attorney failed to discover, before trial, a second burglary investigation related to the pawn tickets found in his possession, and she inartfully elicited testimony regarding that investigation from Detective Santos. We find, however, that the actions taken by his attorney did not rise to the level of ineffective assistance of counsel. First, the record shows that before the trial, Mills' attorney took calculated steps to avoid the presentation of any prior criminal acts taken by Mills, when she submitted a motion in limine to the court, on which the judge ruled in her favor. Despite her attempt to exclude such evidence, during the State's direct examination of Detective Santos, he revealed that pawn tickets were found in Mills' possession at that time of his arrest. Mills' attorney immediately objected to the admission of the testimony, renewing the arguments she presented before trial. The judge, however, decided that the evidence was admissible under Rule 404b of the Texas Rules of Evidence, and he overruled her objection. Then, in an attempt to diminish the impact of that testimony, Mills' attorney questioned Detective Santos about the pawn tickets, at which time he revealed that Mills was involved in another burglary investigation related to those tickets.Recognizing that this evidence was damaging to her case, Mills' attorney requested a limiting instruction in the jury charge. The judge granted that request and included the following instruction:

You are instructed that if there is any testimony before you in this case regarding the defendant's [sic] having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any other purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the motive, intent, absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment of the case, and for no other purpose.

From the record, it is clear that Mills' attorney made a strategic mistake at trial, but that she also acted quickly to correct it during the cross examination of Santos and during the charge conference. However, aside from this miscalculation, Mills has not pointed to any other errors made by his attorney during trial. While Mills' attorney may have overlooked this detrimental information and failed to prevent Santos from testifying on that subject, it was only a single error. It is well-settled that isolated instances in the record reflecting errors of commission or omission do not cause counsel to be ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel's performance for examination. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). The right to effective assistance of counsel merely ensures the right to reasonably effective assistance, and not the right to an error-free representation. See Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Mills, therefore, has failed to show that his attorney's mistake was severe enough to amount to ineffective assistance of counsel.

Finally, we find that even if his trial counsel's representation was found to be ineffective, Mills has failed to show that these mistakes "amount to professional errors of a magnitude sufficient to raise a reasonable probability that the outcome of the trial would have been different but for the errors." Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Because Mills cannot show that his counsel's representation was deficient, his ineffective assistance of counsel challenge must fail. Accordingly, we affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. Before trial, Mills' counsel submitted a motion in limine asking the court to exclude "information about any of Mr. Mills' prior convictions or any extraneous offenses ... [from] the jury." The State agreed not to educe any of this information during the trial, unless it was first presented to the judge outside of the presence of the jury. The court then granted the motion.

2. Rule 404(b) of the Texas Rules of Evidence states that, "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction." Tex. R. Evid. 404(b).