Tony Jerome Irvine v. The State of Texas--Appeal from 217th District Court of Angelina County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-02-309 CR
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TONY IRVINE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 217th District Court
Angelina County, Texas
Trial Cause No. 22,746
MEMORANDUM OPINION

A jury convicted Tony Irvine of aggravated robbery. Irvine pleaded true to two enhancement allegations and the jury sentenced him to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Irvine appeals raising five issues.

In his first issue, Irvine contends the trial court erred in allowing testimony regarding extraneous offenses during the guilt/innocence of his trial. Frank Cromeens was permitted to testify that after his car was recovered on Wednesday, it was again taken three days later, on Saturday, and was once more recovered by authorities. On appeal, Irvine claims this constituted an erroneous admission of an extraneous offense, namely Unauthorized Use of a Motor Vehicle. However, the same evidence was introduced without objection by the testimony of Barbara Sue Cromeens. "[A] defendant who allows evidence to be introduced from one source without objection forfeits any subsequent complaints about the introduction of the same evidence from another source." Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002). Accordingly, even if the evidence was inadmissible, any error was not preserved because the same substantive evidence was introduced elsewhere without objection. Issue one is overruled.

Issue two claims trial counsel was ineffective in failing to request a limiting instruction at the time the evidence of the extraneous offense was admitted, and in failing to request a limiting instruction in the charge. No mention is made of the fact that the evidence came in elsewhere without objection and no claim is made that counsel was ineffective for failing to renew his objection. We have previously noted that "[i]n the absence of an evidentiary hearing in which counsel is called upon to explain his actions, we must presume that, under the circumstances, the challenged action might be simply considered to be part of an overall strategic plan. See Tong v. State, 25 S.W.3d 707, 713-14 (Tex.Crim.App.2000)." Jones v. State, 37 S.W.3d 552, 554 (Tex. App.-- Beaumont 2001, no pet.). Although trial counsel testified at the hearing on Irvine's motion for new trial, he was not questioned about trial strategy. As the State notes in its brief, it could have been trial strategy to let the matter drop, rather than call the jury's attention to it. Further, Irvine asserts there is reasonable probability that but for trial counsel's failure, the result "could" have been different. To succeed, appellant must establish that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Irvine offers no explanation as to how a limiting instruction on the extraneous offense would have produced a different result. Considering the eyewitness identification of Irvine by Barbara Sue Cromeens, we are not persuaded it would have. Issue two is overruled.

Irvine's third issue argues the trial court erred in failing to grant Irvine's motion for continuance during the hearing on his motion for new trial. Irvine contends the continuance was needed to secure the presence of a witness, Rose Lamb.

Rose Lamb testified at trial in Irvine's behalf. At the hearing on Irvine's motion for new trial, counsel stated Ms. Lamb's testimony would regard a relationship between one of the witness, Sue Cromeens, and juror Pauline Lucas. Counsel contended Lamb would offer testimony "they knew each other from the hospital, that they were on a friendly basis, and she may have assumed a greater weight of her testimony . . .." The trial court overruled the motion for continuance after questioning whether Lamb could testify as to what was on the mind of Lucas and noting that the court would have to hear it from Lucas.

Irvine's trial counsel testified at the hearing that if any of the panel had indicated they knew any of the State's witnesses, he would have struck them. Irvine testified that Lamb informed him that Lucas and Cromeens worked together at Memorial Hospital.

Lucas was not subpoenaed to appear at the hearing on the motion for new trial but an affidavit was entered into evidence as State's Exhibit 1. In it, Lucas avers that she did not recognize Ms. Cromeens' name or person, that she worked at Memorial Hospital for approximately twenty years but to her knowledge never worked in the same area as Ms. Crommeens.

Cromeens testified that she "knew" Lucas. According to Cromeens, she had seen Lucas before, "out on the streets," she had never seen Lucas in the hospital, and she did not personally know Lucas. Cromeens did not knew Lucas' name prior to trial, and had never had a relationship or conversation with her, and had not ever worked with Lucas at the hospital.

Irvine argues he was denied the opportunity to "expose a potential jury [sic] misconduct issue." The evidence adduced at the hearing establishes no misconduct occurred. Therefore, we overrule issue three.

Issues four and five challenge the legal and factual sufficiency of the evidence to sustain Irvine's conviction. Irvine does not challenge any of the elements of the offense for which he was convicted and does not discuss the evidence adduced, but only asserts that the "State [sic] case consist [sic] of the victim's questionable identification of Appellant as the assailant." The State's case also consisted of the eyewitness identification of Irvine by the victim's wife, Barbara Sue Cromeens. That being Irvine's only protest, we overrule issues four and five.

The judgment of the trial court is AFFIRMED.

PER CURIAM

Submitted on May 1, 2003

Opinion Delivered May 14, 2003

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Before McKeithen, C.J., Burgess, and Gaultney, JJ.