Randy Adair v. The State of Texas--Appeal from 349th District Court of Houston County

NO. 12-07-00071-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RANDY ADAIR, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Randy Adair appeals his conviction for assault on a public servant. In one issue, Appellant argues that his trial counsel rendered ineffective assistance in violation of his right to counsel under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. We affirm.

Background

Appellant was charged by indictment with assault on a public servant, a third degree felony. // The indictment alleged that Appellant intentionally, knowingly, or recklessly caused bodily injury to Ashley Moreland, a public servant. The indictment also included one enhancement paragraph, alleging that Appellant had previously been convicted on a felony offense. Appellant pleaded not guilty, and the matter proceeded to a jury trial. The evidence showed that Moreland, a juvenile correctional officer with the Crockett State School, noticed Appellant had a square piece of paper, or contraband, under his shirt. Because Appellant refused to show her the paper, she reached out with her left hand and lifted Appellant s shirt to take the paper. As she did so, Appellant grabbed her wrist and twisted it, causing the wrist to pop. According to Appellant, he gently wrapped his hand around Moreland s wrist and pushed her away. He denied intending to harm her.

On cross examination, the State asked Appellant if he was in the Crockett State School for aggravated sexual assault of a child under fourteen years old. Appellant confirmed that he was. Appellant s counsel did not object. Further, the State asked Appellant how many documented incidences he had at the school. He replied, Over 300. These incidences included forty-two security admissions of which thirty-one were for assault on youth, and seven incidents of assault on staff, both by offensive contact and bodily injury. Again, Appellant s counsel did not object.

After both the State and Appellant rested and closed their cases, Appellant s counsel stated that she had no objections to the jury charge. The charge described the mens rea of the alleged assault as a nature of conduct offense regarding whether Appellant intentionally or knowingly committed an assault, and as a result of conduct offense regarding whether Appellant recklessly committed the offense. During closing arguments, the State argued that Appellant was not believable or credible because he had been convicted of a crime of moral turpitude and was a sex offender. In its rebuttal argument, the State listed Appellant s documented incidents within the correctional system, including his assaults on staff by offensive contact and bodily injury.

After the trial concluded, the jury found Appellant guilty of assault on a public servant as alleged in the indictment. The trial court found the enhancement paragraph to be true, and assessed Appellant s punishment at fifteen years of imprisonment. // Appellant filed a motion for new trial and in arrest of judgment, but he did not raise the issue of ineffective assistance of counsel. No hearing was held on the motion for new trial and it was overruled by operation of law. This appeal followed.

Ineffective Assistance of Counsel

In his sole issue, Appellant argues that trial counsel rendered ineffective assistance in violation of his right to counsel under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. More specifically, he complains that trial counsel failed to object when the State impeached him with a juvenile adjudication, failed to object when the State questioned him regarding unadjudicated extraneous offenses, and failed to request proper jury instructions regarding the mens rea for assault. The State argues that Appellant has not established that he was deprived of effective assistance of counsel or that any deficiency in trial counsel s performance prejudiced his right to a fair trial.

Standard of Review

In reviewing an ineffective assistance of counsel claim, we apply the United States Supreme Court s two pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under the first prong of the Strickland test, an appellant must show that counsel s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must show that counsel s representation fell below an objective standard of reasonableness. Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to 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, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Review of a trial counsel s representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge in a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is the appellant s burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. An appellant must prove both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712.

However, a substantial risk of failure accompanies an appellant s claim of ineffective assistance of counsel on direct appeal. Thompson, 9 S.W.3d at 813. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. Id. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Id. at 813-14.

Juvenile Adjudication and Extraneous Offenses

Appellant first argues that his trial counsel failed to object when the State impeached him with a juvenile adjudication. Rule 609(d) of the Texas Rules of Evidence states that evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III of the Family Code, or the Juvenile Justice Code, unless required to be admitted by the United States Constitution or the Texas Constitution. Tex. R. Evid. 609(d). Neither Appellant nor the State claims that Appellant s juvenile adjudication was admissible under the family code or juvenile justice code or that it was required to be admitted by the United States or Texas Constitution. Further, according to the Texas Family Code, an order of adjudication or disposition in a proceeding under the Juvenile Justice Code is not a conviction of a crime. Tex. Fam. Code Ann. 51.13(a) (Vernon Supp. 2007). An adjudication that a child engaged in conduct on or after January 1, 1996 that constituted a felony offense resulting in commitment to the Texas Youth Commission is a final felony conviction only for the purposes of penalizing repeat and habitual felony offenders. Tex. Fam. Code Ann. 51.13(d) (Vernon Supp. 2007). Thus, Appellant s juvenile adjudication may not have been admissible.

Secondly, Appellant contends that trial counsel failed to object when the State questioned him regarding more than 300 unadjudicated extraneous offenses. Evidence of other crimes, wrongs or acts, although relevant, is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). Extraneous offense evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). If extraneous offense evidence is not relevant apart from supporting an inference of character conformity, it is inadmissible under Rule 404(b). Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh g). After the opponent objects to the evidence under Rule 404(b), the proponent of the evidence has the burden to satisfy the trial court that the evidence has relevance apart from its tendency to show character conformity. Id. Trial counsel did not object to the extraneous offense evidence nor did she demand that the State prove the extraneous offenses had relevance apart from their tendency to show that Appellant acted in conformity therewith. See id.

However, the record does not contain any evidence from trial counsel s perspective concerning why she did not object when Appellant was questioned regarding his juvenile adjudication or his unadjudicated extraneous offenses. When the record is silent about trial counsel s reasons for choosing a particular course of action, finding trial counsel ineffective would call for speculation by an appellate court. See Stults v. State, 23 S.W.3d 198, 208 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). We will not engage in such speculation. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Whatever trial counsel s reasons may have been for not objecting to the State s question regarding the juvenile adjudication and the unadjudicated extraneous offenses, we must presume, in the absence of a record identifying these reasons, that counsel proceeded deliberately as part of sound trial strategy. See Stults, 23 S.W.3d at 209. Thus, Appellant has not met his burden to prove, by a preponderance of the evidence, that these aspects of trial counsel s representation fell below the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813.

Further, even if the decision not to object was unreasonable, Appellant has not shown that he suffered prejudice. It is not sufficient to show merely that the errors had some conceivable effect on the outcome of the proceeding. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Virtually every act or omission of counsel would meet that test. Id. Rather, Appellant must show that trial counsel s errors actually had an adverse effect on the case. Id. Appellant has not shown that any failure to object had an adverse effect. Although Appellant admitted grabbing Moreland, he denied intentionally or knowingly injuring her. Appellant argues that his credibility as a witness was damaged by the introduction of the juvenile adjudication and the unadjudicated extraneous offenses, which resulted in his conviction. However, the jury could have disbelieved Appellant s testimony that he intentionally or knowingly injured Moreland but found that his actions were reckless, which was also charged in the indictment. Based upon a review of the record before us, we cannot conclude as a matter of law that Appellant has shown there is a reasonable probability of a different result if his trial counsel had objected to the State s impeaching him with the juvenile adjudication or questioning him about the unadjudicated extraneous offenses.

Jury Instructions

Appellant also argues that trial counsel failed to request proper jury instructions regarding the mens rea for assault. To be guilty of assault, one must intend the result of the conduct, not just the conduct itself. Brooks v. State, 967 S.W.2d 946, 950 (Tex. App. Austin 1998, no pet.). In other words, an assault is a result of conduct offense. Kelly v. State, 748 S.W.2d 236, 239 (Tex. Crim. App. 1988); Mendenhall v. State, 15 S.W.3d 560, 567 (Tex. App. Waco 2000), aff d, 77 S.W.3d 815 (Tex. Crim. App. 2002). However, the jury was instructed that the mens rea of an alleged assault is a nature of conduct offense regarding whether a person intentionally or knowingly commits an assault, and is a result of conduct offense regarding whether a person recklessly commits an assault. In his brief, Appellant states that it is undisputed that he intentionally grabbed Moreland s arm and that whether he intended the resulting injury was not encompassed by these jury instructions. However, the State contends that Appellant s actions were most likely to be proven as reckless.

We have no evidence from trial counsel s perspective concerning why she did not request proper jury instructions regarding the mens rea for assault. When the record is silent about trial counsel s reasons for choosing a particular course of action, finding trial counsel ineffective would call for speculation by an appellate court. See Stults, 23 S.W.3d at 208. We will not engage in such speculation. See Jackson, 877 S.W.2d at 771. Whatever trial counsel s reasons may have been for not requesting proper jury instructions, we must presume, in the absence of a record identifying these reasons, that counsel proceeded deliberately as part of sound trial strategy. See Stults, 23 S.W.3d at 209. Thus, Appellant has not met his burden to prove, by a preponderance of the evidence, that this aspect of trial counsel s representation fell below the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813.

Further, even if the decision not to request proper jury instructions was unreasonable, Appellant has not shown that he suffered prejudice. Although Appellant admitted grabbing Moreland, he denied intentionally or knowingly injuring her. However, the jury could have found that Appellant s actions were reckless, which was authorized by the result of conduct instruction. Based upon a review of the record before us, we cannot conclude as a matter of law that Appellant has shown there is a reasonable probability of a different result if his trial counsel had requested proper jury instruction regarding the mens rea for assault.

Conclusion

Appellant has not established that his trial counsel rendered ineffective assistance by failing to object when the State impeached him with a juvenile adjudication, failing to object when the State questioned him regarding unadjudicated extraneous offenses, or failing to request proper jury instructions regarding the mens rea for assault. Accordingly, we overrule Appellant s sole issue. The judgment of the trial court is affirmed.

BRIAN HOYLE

Justice

Opinion delivered May 7, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)